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V. 3^/a: H5p 




Prepared for and Presented to the 

or the 



Printed for the use of the Committee on the Judiciary 

The views contained in this report are the views of the authors and do 

not necessarily reflect the views of the committee 

or its staff. 

78-342 WASHINGTON : 1976 

For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington, D.C. 20402 - Price $1.10 

JAMES O. EASTLAND, Mississippi, Chairman 
JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska 

PHILIP A. HART, Michigan HIRAM L. FONG, Hawaii 

EDWARD M. KENNEDY, Massachusetts HUGH SCOTT, Pennsylvania 
BIRCH BAYH, Indiana STROM THURMOND, South Carolina 


ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia 

JOHN V. TUNNEY, California 

Subcommittee on Constitutional Rights 
JOHN V. TUNNEY, California, Chairman 
JOHN L. McCLELLAN, Arkansas HUGH SCOTT, Pennsylvania 

EDWARD M. KENNEDY, Massachusetts ROMAN L. HRUSKA, Nebraska 

BIRCH BAYH, Indiana HIRAM L. FONG, Hawaii 

PHILIP A. HART, Michigan STROM THURMOND, South Carolina 


Jane L. Frank, Chief Counsel and Staff Director 
W. Dean Drake, Assistant Chief Clerk 


Freedom of expression and the right to a fair trial are two of the 
fundamental precepts of a free society. Both interests enjoy constitu- 
tional status — in the First Amendment's protection of free speech and 
press, in the Sixth Amendment's assurance of those procedures thought 
necessary to secure a fair trial, and the Fifth Amendment's guarantee 
of due process of law. 

This report on fair trial and free expression was undertaken at the 
request of the Subcommittee on Constitutional Rights of the Senate 
Judiciary Committee. Its purpose is to explore fair trial-free ex- 
pression issues and to aid the Subcommittee in determining whether 
hearings or legislation would be useful. The report considers relevant 
case law, proposals, and reports (such as those of bar associations and 
other groups) and offers commentary and recommendations for the 
Subcommittee's consideration. 

The research for this report was largely complete by March 1, 
1 076. After the report had been written, the Supreme Court decided 
Nebraska Press Association v. Stuart, 96 S. Ct. 2791 (1976), in which 
the Court struck down a Nebraska court order restricting press cover- 
age of a murder trial in that state. The Court's decision in Nebraska 
Press reinforces the conclusions reached in this report, and the 
bearing of that decision on the fair trial-free expression issue is sum- 
marized in an addendum to the report. 

A. E. Dick Howard, 
White Burke tt Miller Pro fessor 

of Law and Public Affairs, 

University of Virginia. 
Sanford A. Newman, 

School of Law, University 

of Virginia. 


We wish to thank the lawyers, judges, journalists, and others who 
generously lent their insight and expertise in reading a draft of this 
report. While they are not responsible for the views Ave express here. 
the report is the better for their comments. 

We are especially indebted to David L. Shapiro, professor of law at 
Harvard Law School, for his thorough and thoughtful comments. We 
are also grateful to the following readers for their helpful and wel- 
come suggestions: 

Alan Barth, formerly editorial writer. Washington Post. 
George Beall, Esq., former United States Attorney for the Dis- 
trict of Maryland. 

Joel M. Grora, American Civil Liberties Union, Xew York. 
John B. Kuhns. Esq., Washington, D.C. 

Jack C. Landau, Reporters Committee for Freedom of the 
Press, Washington, D.C. 

The Honorable Paul C. Reardon, Supreme Judicial Court of 


We were fortunate to have the excellent editorial assistance of Ms. 

Phyllis Culp, of Charlottesville, Virginia, and of Ms. Christine Owens, 

a third-year law student at the University of Virgina. Ms. Owens also 

assisted with research and drafting at various stages. 

Finally, we wish to thank those people whom we interviewed and 
consulted at the beginning stages of our inquiry, before it was decided 
that this report would focus exclusively on the fair trial-free expres- 
sion issue : 

David Beckwith, Time Magazine. 
James E. Clayton. Washington Post. 
Lyle Denniston, Washington Star. 

Harriet Ellis, former staff director, American Bar Association 
Legal Advisory Committee on Fair Trial/Free Press. 
James Jackson Kilpatrick, syndicated columnist. 
Alan Reitman, associate director, American Civil Liberties 
Edwin P. Yoder, Washington Star. 


Digitized by the Internet Archive 
in 2013 



I. Introduction 1 

A. Background 1 

B. Scope of this report 3 

C. Constitutional and statutory provisions 4 

II. The state of the law 4 

A. Substantive validity of orders 4 

1. Direct restraints on publishing 4 

a. First Amendment protection from contempt by 

publication: The ' "clear and present danger" 

cases 5 

b. Prior restraints on expression 8 

c. The fair jury trial cases 9 

d. Recent indications of judicial opinion regarding 

direct restraints 15 

e. Summary: Validity of direct restraints on the 

press 16 

2. Restraints on trial participants 17 

a. Another suggestion from Sheppard 18 

b. Decisions in federal courts of appeal 19 

3. Closing judicial proceedings to the press and public.- 24 

a. The defendant's right to a public trial 24 

b. Defendant's rights provide inadequate protec- 

tion for press and public 24 

c. The rights of the press 25 

d. The rights of the public 25 

B. Review of restrictive orders 28 

1. Final orders 28 

2. Appealing from punishment after violation: Problems 

of collateral bar 30 

C. First Amendment due process: The right to procedural safe- 

guards prior to issuance of orders restricting speech or news- 
gathering 33 

1 . Rights of those directly restrained 33 

2. Rights of those indirectly affected 34 

III. Proposals and reports 34 

A. Proposed legislation and hearings 34 

B. Other major reports and proposals 35 

1. The American Bar Association 35 

a. Direct restraints on the press 35 

b. Restraints on trial participants 36 

c. Restrictions on access to judicial proceedings. 38 

d. Use of traditional techniques to insure juror 

impartiality 39 

e. Procedure for issuing restrictive orders 41 

f. Summary of the ABA position 42 

2. Association of the Bar of the City of New York 43 

a. Direct restraints on the press 43 

b. Restraints on trial participants 43 

c. Traditional techniques 44 

3. United States Judicial Conference 44 

4. Department of Justice guidelines 45 

5. The American Newspaper Publishers Association 45 

6. The American Civil Liberties Union 45 

7. Twentieth Century Fund Task Force 46 



IV. Commentary and recommendations 49 

A. What body should formulate fair trial — free expression 

guidelines 49 

1. Commentary 49 

a. The authority of Congress ."0 

b. The role of the courts 52 

2. Conclusions 58 

B. Accommodating the interests of fair trial and freedom of 

e\) >ression 59 

1. General considerations 59 

a. The constitutional interests at stake 59 

b. The dynamics of judicial restrictions i»l 

2. Alternatives to restrictive orders 62 

a. Change of venue 63 

b. Selection of the jury G4 

c. Waiver of jury trial 65 

d. Cautionary instructions to the jury 65 

C. Recommendations 

1. Direct restraints on the press 6G 

2. Orders restricting extrajudicial statements by trial 

participants G7 

a. Restrictions on trial participants affect the 

First Amendment interests of the public GS 

b. The burden of justification for restrictive 

orders: Criminal cases versus civil cases 69 

c. Restrictions on the defense versus restrictions 

on the prosecution 69 

d. Bench trials versus jury trials 71 

p. Restrictions on attorneys 7:5 

f. Restrictions on parties 7G 

g. Res trictions on witnesses 7G 

3. Secrecy and closure of judicial proceedings 7G 

4. Reviewability of restrictive orders 77 

o. Procedural due process 7S 

Addendum: Comment on Nebraska Press Association v. Stuari 81 


A Background Report Prepared for and Presented to the Sub- 
committee on Constitutional Rights, U.S. Senate Committee 
on the Judiciary* 

By A. E. Dick Howard, White Burkett Miller Professor of Law 
and Public Affairs, University of Virginia, and Sanford A. New- 
man, School of Law, University of Virginia 

I. Introduction 


On this side lay Scylla, while on that Charybdis in her 
terrible whirlpool was sucking down the sea. 

—The Odyssey. 

The fair trial-free expression controversy implicates two of our 
most fundamental civil liberties. On one side lies danger that the 
Sixth Amendment guarantee of a fair trial by an impartial jury will 
go unfulfilled because of highly prejudicial publicity. On the other 
lies danger that the First Amendment guarantees of freedom of 
speech and press will be undermined by our efforts to limit prejudicial 

This dilemma is by no means a modern invention. 1 It has attained 
new proportions, however, as the development of modern communi- 
cations and newsgathering has made wide dissemination of informa- 
tion regarding pending litigation commonplace. Over the course of 
the last decade, other events have joined with these technological 
developments to focus attention on the fair trial-free expression 

In 1964, the Warren Commission report on the assassination of 
President Kennedy criticized the publicity surrounding the arrest of 
Lee Harvey Oswald and declared "it would have been a most difficult 
task to select an unprejudiced jury, either in Dallas or elsewhere." 2 
The Commission concluded that the Oswald experience was "a dra- 
matic affirmation of the need for steps to bring about a proper balance 
])ot ween the right of the public to be kept informed and the right 
of the individual to a fair and impartial trial." 3 

*For a comment on Nebraska Press Ass'n v. Stuart, decided after this report was sub- 
mitted to the Subcommittee, see Addendum, infra p. 81. 

1 See Judicial Conference of the United States, "Report of the Committee on the Opera- 
tion of the Jury System on the "Free Press-Fair Trial." 43 F.R.D. 391, ^94 h.2 
.°>95 (1969) [hereinafter cited as Kaufman Report], which notes that there were charges of 
prejudicial publicity in the trial of Aaron Burr in 1S07. and lists a nurnher of parly 
examples "of the impact of widespread and uncontrolled inflammatory publicity upon the 
administration of criminal justice." 

- Report of the President's Commission on the Assassination of President Kcnnedn 
(Wnphinston. D.C., 1964), p. 238. 

3 /rZ., p. 99. 


7S-342— 76 2 

The following year, the Senate Judiciary Committee's Subcommit- 
tee on Constitutional Rights met jointly with the Subcommittee on 
Improvements in Judicial Machinery to hold hearings on S. 290 and 
the fair trial-free expression problem. 4 Though no further action was 
taken on the bill, the hearings brought forth a wide range of exper- 
tise and opinion on the subject and signaled the beginning of a new 
i ra of concern over fair trial-free expression issues. 

Another year later, in I960, a series of Supreme Court decisions 
climaxed in the reversal of Dr. Sam Sheppard's murder conviction on 
the ground that prejudicial publicity and a chaotic courtroom at- 
mosphere had deprived him of his right to a fair trial. Slieppard v. 
Maxwell '° "laid down a mandate to the courts to deal with the problems 
caused by the impact of publicity on the jury system.'' c announcing 
that the courts "must take such steps by rule and regulation that will 
protect their processes from prejudicial outside interferences." 7 

In the same year, the American Bar Association issued a tentative 
draft of its comprehensive Eeardon Report on fair trial-free expres- 
sion, proposing restrictions on the release of information by attorneys, 
law enforcement officers, and court officials, urging that judicial pro- 
ceedings be more frequently closed to the press and public, and ap- 
proving use of the contempt power to restrict publication by the press 
under certain very limited circumstances. 8 This report was followed 
in rapid succesion b} 7 reports of the Amerian Newspaper Publishers 
Association, 9 the Association of the Bar of the City of Xew York. l0 
and the Judicial Conference of the United States. 11 

The Judicial Conference's Kaufman Report was virtually a directive 
to the federal courts and is therefore of special significance to this 
study. It adopted verbatim the ABA recommendations restricting the 
release of information by attorneys, proscribed any release by judicial 
employees of information not already in the public record, and sug- 
gested that in sensational cases it might be appropriate to prohibit ex- 
I ra judicial statements by trial participants. The report also recom- 
mended more liberal use of "traditional techniques'' to insure juror 
impartiality such as continuance, change of venue, sequestration of 
jurors and witnesses, voir dire examination of prospective jurors, and 
cautionary instructions to the jury. 

State and federal courts have responded to these events with in- 
creased efforts to prevent prejudicial publicity from reaching the jury. 
Sometimes those efforts have involved only the use of "traditional 
techniques" and have threatened neither the freedom of the press nor 
the larger interests in public information which underlie the Firs! 

4 Rearing! r.oforo tiio Subcommittee on Con«tltiition-il lUphts mid tho Subcommittee 
on Improvement! in Judicial Machinery of the Committee on the Judiciary, United States 
Senate, Rlghty-nlnth Congress, First Session, on S. 290 ami t ho Relationship between 
tiio Constitutional Risrhts <>f a Free Press and tiio Constitutional Guarantees of an 
Impartial Trial (An*. 17-20. 1965). See discussion tnfra pp. 84 35. 
rs. :\:w fionfi). discussed tnfra pp. i:: 1 i 

n Kaufman Rrnnrt, p. 895. 

»S84 U.S. at ?,03. 

• American P>ar ARs'n Advisor? Committor on Fnir Trlnl and Froo Fross Standard* 
Relatina to Fair Trial and Fran rim*. Tentative Draft (New York. liinfi). Sop discussion of 
Aporoved Draft tnfra dp. 8fi '" 

< American Newspaper Publishers Aee'n, Free Pte&e and Fair Trial (New York, i n ''.7> 

Sw discussion infra n. 4M. 

10 Association <>f t»>o Hnr of tno Cltv of New Yurie. SpcMal Committor on Firt|n. Tolo- 

rhe Administration of Justice, Freedom of thr Fn 9$ and Fair Trial (Now York. 
T"-.7> Sw» discission infra np. 4fl li 

11 Kaufman f'rport. S*-o dlSCUSSlon infra pp. 44 1" 

Amendment guarantees. At other times they have attempted to stop 
the news at its source, either by prohibiting public statements by trial 
participants or by closing judicial proceedings to the press and public. 
And sometimes they have taken the form of direct restraints on the 
press, forbidding the publication of specified categories of informa- 
tion. These orders have not been limited to criminal cases, which di- 
rectly implicate the Sixth Amendment right to a fair trial, but have 
extended to civil cases, where jury prejudice would violate the due 
process guarantees of the Fifth and Fourteenth Amendments. 

Since most orders restricting publication of or access to informa- 
tion regarding judicial proceedings are not officially reported, their 
exact number is impossible to ascertain. A trend, however, is shown 
in a study done by the Reporters Committee for Freedom of the Press. 
This committee compiled all reported and unreported orders they were 
able to find. They listed none before 1966, 2 in 1966, 5 in 1967, 13 in 
1968, 6 in 1969, 8 in 1970, 14 in 1971, 10 in 1972, 19 in 1973, 47 in 1974, 
and 63 in 1975. 12 Even more significant is that approximately eighty 
of the ninety-four United States District Courts now have permanent 
restrictive orders applicable to all criminal and civil proceedings in 
those federal courts. 13 

Two recent judicial proceedings have once more sharply focused the 
spotlight of public attention on the fair trial-free expression contro- 
versy. In California, the federal trial of Patricia Hearst was marked 
by widespread publicity, secret selection of jurors, and daily press con- 
ferences by defense counsel. In Nebraska a trial judge imposed sweep- 
ing restraints on publication of information regarding a sensational 
murder trial. The press appealed to the Supreme Court, where Mr. 
Justice Blackmun, in an in chambers opinion, granted a partial stay of 
the order. 14 


This report is intended to provide the Subcommittee on Constitu- 
tional Rights of the Senate Judiciary Committee with an introduc- 
tion to the fair trial-free expression issue, and to aid the Subcommittee 
in determining whether hearings or legislation in that area would be 
useful. We consider problems arising from direct restraints on the 
press, restraints on release of information to the press, and restrictions 
on access to judicial proceedings and judicial information. Particular 
emphasis is placed upon the implications o.f constitutional law and 
theory for various possible solutions to the fair trial-free expression 
problem. 15 

Because of the variety of laws, rules, and experiences of different 
states with regard to fair trial-free expression, the doubtful constitu- 
tional validity of federal legislation prescribing procedures for the 
state courts, and the breadth of this topic, research has been limited 
to problems arising in the federal courts, the decisions of federal 

12 Jack C. Landau, "Fair Trial and Free Press: A Due Process Proposal —The Chnl- 
lentre of the Communications Media." 62 A. B.A.J, 55, 57 (1976). 

13 Chicago Council of Lawyers v. Bauer, ")22 F.2d 242 (7th Cir. 107."). cert, denied, 
96 S. Ct. 3201 (1976). 

14 After the writing: of this renort. the Supremo Court handed down its decision in 
Nebraska Press Asa'n v. Stuart, 96 S. Ct. 2791 (1976). See Addendum, infra p. 81. 

B We have not undertaken to survey the empirical studios regarding the effectiveness of 
traditional methods for insuring jury impartiality, nor to consider the unique problems 
ruised by special grand jury investigations. 

courts of appeal, and the reports of major national organizations. The 
cut-off date for most of this research was March 1. 197'G, but some por- 
tions of the report have been more recently updated. 
^ Part II contains an analysis of the relevant law as established by 
the Supreme Court and the' federal circuit courts of appeal. Part III 
summarizes proposed legislation and major reports on the subject. 
Part IV concludes the report with commentary and recommendations. 


Fi> • <lom of speech and press : The First Amendment 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press: or the right of the people peaceably to as- 
semble, and to petition the Government for a redress of grievances. 

Public Trial by an Impartial Jury : The Sixth Amendment 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature 
and cause of the accusation : to be confronted with the witnesses against 
him ; to have compulsory process for obtaining Witnesses in his favor- 
and to have the Assistance of Counsel for his defence. 

Process: The Fifth Amendment 
Xo person shall ... be deprived of life, liberty, or property, with- 
out due process of law. . . . 

Due Process and the States: The Fourteenth Amendment 

Xo state shall . . . deprive any person of life, liberty, or property, 
without due process of law. . . . 

Th> ( 'rlmhial Contempt Power in Federal Courts : 18 U.S.C. § Jfil 

A court of the United States shall have power to punish by line or 
imprisonment, at its discretion, such contempt of its authority, and 
uone other, as — 

( 1 ) Misbehavior of any person in its presence or so near t here! o 
as to obstruct the administration of justice; 

(2) Misbehavior of any of its officers in their official trans- 

(3) Disobedience or resistance to its lawful writ, process, order, 
rule decree or command. 

II. Tin: State of THB Law 

A. SUBSTANTIVE validity 01" OBDUl 

/. Din ' Restraints on Publishing 
Federal court decisions bearing on the fair trial-free expression 

fall nat ui-ally info four groups. In the firsj group arc four cases 

liich the Supreme Court reversed convictions for contempt by 

publication, focusing on the degree of First Amendment protection to 

on regarding the courts and pending litigation. In 

dealing with prior restraints on Hie press. In the 

third are cases in which the Court dealt with claims that prejudicial 
publicity had deprived a defendant of a fair trial. Finally, in the 
fourth are very recent Supreme Court dicta and Court of Appeals 
decisions which are now beginning to synthesize the three earlier lines 
of cases and to provide some indication of how the potential fair trial- 
free expression conflict is to be avoided or resolved. As this report is 
written, the Supreme Court has heard arguments in Nebraska Press 
Association v. Stuart, Xo. 75-817; its decision should give important 
guidance on some of the issues discussed in this report. 1 

a. First Amendment Protection from Contempt by Publica- 
tion: The Clear and Present Danger Cases 
The contempt cases la established the general principle that the con- 
tempt power could be used to curtail free expression outside the court- 
room only if it could be shown that such expression presented a "clear 
and present danger'- to the administration of justice. Craig v. Harney, 
331 U.S. 367, 372 (1917). In examining the scope of this principle, it is 
important to note that in each of these cases : 

(1) The petitioner had been convicted of criminal contempt because 
he had published articles or editorials which the trial court had found 
might prejudice pending litigation. 

(2) The lower court had found the publications contemptuous on 
the ground they had a tendency to cause disrespect for the court or to 
prejudice the decision of a judge or grand jury; none of the cases 
involved a jury trial. 

(3) The alleged contemner had not been a party to the litigation 
commented upon. 2 

(4) The publication had been preceded by neither legislation nor a 
court order specifying what comment might be considered 

In Bridges v. California, 311 U.S. 252 (1941), while a new trial 
motion was pending in a dispute between two unions, an officer of one 
of the unions issued a statement calling the judge's decision in the 
case outrageous and threatening a strike if it were enforced. In Times- 
Mirror Co. v. Superior Court, considered jointly with Bridges, a 
newspaper had been convicted of contempt for publishing three edi- 
torials. Of these, the one which the lower court had found most offen- 
sive denounced two men convicted of assault and stated that the judge 
would make a grave mistake if he granted probation to either of them. 
In both Bridges and Times-Mirror, the Supreme Court reversed the 
convictions, holding that neither a "reasonable*' nor an "inherent" 
tendency to interfere with the administration of justice was sufficient 
to justify a restriction of free expression. The Court required instead 
that a "clear and present danger" of such interference be demon- 
strated, emphasizing that before freedom of expression can be 
abridged "the substantive evil must be extremely serious and the 
decree of imminence extremely high." 314 U.S. at 263. 

In Pennekanip v. Florida, 328 U.S. 331 (1946), the Court reversed 
a contempt citation entered against a newspaper and its editor for 

1 For the Court's decision, see Addendum, infra p. 8t. 

**Wood v. Georgia, 370 U.S. 375 (1962) ; Craia v. Harriett. 331 U.S. 367 M 9-m ; Pen- 
nekamp v. Florida, 328 U.S. 331 (1946) ; Bridges v. California, 314 U.S. 252 (1941). 

2 Bridges had involved a dispute between two unions. The alleged contemner, though 
not a party, was an officer of one of those unions. 


critically and inaccurately reporting court proceedings — including 
pending and for suggesting that the judges involved were 

biased toward criminals. The Court rejected the Florida Supreme 
Court's justification that the articles reflected upon the integrity of 
the court and tended to prejudice the judges, holding instead that such 
criticism in "pending non-jury proceedings could not directly affect'' 
the orderly administration of justice and hence did not pose a "clear 
and present dangi 

One year later, in Craig v. Barney, 331 U.S. 367 (1947), the Supreme 
Court reversed a conviction for publishing articles and an editorial 
unfairly reporting a case in which a new trial motion was pending. 
The Court concluded, 331 U.S. at 374 : 

A trial is a public event What transpires in the courtroom is public property. 
If a transcript of the court proceedings had been published, we suppose none 
would claim that the judge could punish the publisher for contempt . . . Those 
who see and hear what transpired can report it with impunity. There is no 
special perquisite of the judiciary which enables it, as distinguished from other 
institutions of democratic government to suppress, edit, or censor events which 
transpire in proceedings before it. 

The Court recognized there might conceivably be some situations 
which would pose a "clear and present danger'' sufficient to justify 
curtailment of free expression. Before such a situation might be 
found, however, "[t]he fires which [the expression] kindles must 
constitute an imminent, not merely a likely, threat to the administra- 
tion of justice. The danger must not he remote or even probable; it 
must immediately imperil." 331 U.S. at 376. 

The "clear and present danger" test was reaffirmed in Wood v. 
Gi orguu, 370 U.S. 375 ( 1962), as the Court reversed the conviction of 
a sheriff who had issued extrajudicial statements to the press and 
grand jury criticizing the grand jury's investigation into bloc voting 
patterns by blacks. The Court held that, at least when a grand jury is 
performing an investigation into a general problem area and is not 
concentrating on indicting a particular individual, there is no evi- 
dence of a "clear and present danger" to the administration of justice 
**in the absence of any showing of actual interference with the under- 
takings of the grand jury." The argument that Wood's position as an 
officer of the court justified restricting his freedom of expression was 
expressly rejected with the comment that his statements in no way 
interfered with his official duties. ,'$70 U.S. at 393 94. 

While this decision differed from those preceding it in that it in- 
volved a grand jury of laymen rather than a judge the Court was 
careful to point out. that it was not deciding upon standards to be 
applied in a jury trial situation. 

[T!: .Iocs not represent a situation where an individual is on trial . . . 

Moreover, we Deed not pause here to consider the variant factors that would 
be pn-sont in a case Involving a petti jury. Neither Bridget, Ponirlcnmp nor 
Hamep involved a trial l>y jury. In BridffCi it was noted that "trials are not like 

elections, to he won through the use of the meeting-hall, the radio, and the 

newspaper" (314 0.S., at 271), and of course the limitations on free si>eech 

me a different proportion when expression i- directed toward a trial as 
i to>a grand jury Investigation. [870 D.S. at ::s:>-00] 

More recent cases indicate that, in other areas of Hie Firs! Amend- 
ment, the Court, 1: i •> ,1 away from explicit reliance on the 
it- and present danger" standard, in line with Its current inclina- 
tion to resolve difficult constitutional questions by balancing compet- 

ing interests. 3 However, this report continues to refer to the standard 
for two reasons. 

First, ''clear and present danger'' has a much more concrete mean- 
ing when limited to the context of fair trial-free expression cases 
than when used as a general standard for the First Amendment. In 
other cases, we are left to wonder "clear and present danger of what V* 
We are told that the threat of harm must be imminent rather than 
likely, but we are not told how serious the threatened harm must be. 
Formulas which require weighing 'the gravity of the 'evil,' discounted 
by its improbability" against the invasion of free speech (Dennis v. 
United States, 341U.S. 494, 510 (1951)) raise more questions than 
they answer. Moreover the very notion of permitting restraints on a 
showing of ''clear and present danger" has been criticized as per- 
mitting the stifling of speech as soon as it threatens to become 
effective. 4 

In the fair trial-free expression context, on the other hand, we 
know exactly what "evil" must be imminent : the evil of an unfair 
trial. While one could calibrate the seriousness of the evil in terms of 
how much prejudice would result, the clear and present danger stand- 
ard at least places a bottom line on judicial restrictions: they are to 
be permitted only when there is an imminent threat of significant 
prejudice. Similarly, when applied to fair trial-free expression rather 
than subversive activities cases, the standard does not permit stifling 
speech as soon as it threatens to become effective ; after all, few have 
justified extrajudicial statements in the fair trial context on the 
ground that they have a legitimate interest in prejudicing a jury. 
The expression may be fully effective in promoting public scrutiny 
of the judicial process, in erasing the public stigma of a criminal 
indictment, or in explaining the political significance of a trial, with- 
out providing any justification for judicial restriction. 

The other reason for referring to the "clear and present danger" 
standard is that it is a reasonably accurate expression of the level of 
necessity which must be shown before the Court will sustain judicial 
restrictive orders. While the standard may itself be derived from a 
sort of balancing analysis, simply to talk about balancing tells us little 
about the weights the Court has already attached to the values of 
free expression and fair trial. Whether the Court continues to rely 
explicitly on the clear and present danger phrase or simply balances 
competing interests, it probably will continue to prohibit restrictions 
on publication unless an imminent and serious threat to the fairness 
of a trial is shown. 

With this in view, the cases discussed in this section (Bridges, Penne- 
hamp, Craig, and Wood) establish that in the absence of a prior pre- 
scriptive order of the court the contempt power may not be used to 
punish expression regarding pending litigation unless that expression 
poses a clear and present danger to the administration of justice. They 
also indicate that this standard will generally preclude punishment 
for comment relating to a non-jury case. But two important questions 
remain unanswered : 

(1) Do the principles enunciated in Bridges, Pennekamp, Craig, 
and Wood apply with equal force to judicial orders constituting a 

3 tfre, e.g., Procunier v. Martinez, 416 U.S. 396 (1974) ; ITcah/ v. James, 408 U.S. 169 
i See, e.g., Dennis v. United States, 341 U.S. 494, 5S0 (19ol) (Black, J., dissenting). 


prior restraint on speech? This question has particular significance 
since the federal courts cannot use the contempt power to punish 
conduct occurring outside the presence of the court except when that 
conduct is in violation of a court order. 18 U.S.C.A. § 401 ; Nye v. 
United States, 313 U.S. 33, 47-48 (1941) (interpreting the prede- 
cessor of Section 401, 18 U.S.C. § 241). 

(2) Is the clear and present danger standard equally applicable to 
cases involving trial by jury? There is little indication of the cir- 
cumstances under which comment might be found to create such a 
danger in a jury case. 

b. Prior Restraints on Expression 

For many years the Supreme Court embraced the Blackstonian 
view that the First Amendment was intended solely to protect against 
the imposition of restraints before expression took place — not against 
subsequent punishment for expression. See, e.g., Patterson v. Colo- 
rado, 205 U.S. 454 (1907). With the turn of the century, the Court 
began to recognize that freedom of expression guaranteed more than 
immunity from previous restraints or censorship, but continued to 
maintain that preventing such restraints was its most important 
function. Near v. Minnesota, 283 U.S. 697 (1931) ; Schenck v. United 
States, 249 U.S. 47 (1919). 

In more recent years, the Court has consistently held that "[a]ny 
system of prior restraints of expression comes to this Court bearing 
a heavy presumption against its constitutional validity.'' Soath- 
< n 'stem, Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) ; New 
York Times Co. v. United States, 403 U.S. 713, 714 (1971) ; Carroll v. 
President and Commissioners of Princess Anne, 393 U.S. 175, 181 
(1968) ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). The 
government "thus carries a heavy burden of showing justification for 
the imposition of such a restraint.'- New York Times Co. v. United 
States, 403 U.S. 713, 714 (1971) ; Organisation for a Better Austin v. 
Keefe, 402 U.S. 415.419 (1971). 

The Court's derision in the Pentagon Papers case. New York Times 
Go. v. United States. 403 U.S. 713' (1971). provides some indication 
of the difficulty of rebutting the presumption of invalidity. There the 
Court overturned a prior restraint on publication despite the facts 
that the papers were classified "Top Secret — Sensitive,'' that they 
were surreptitiously copied, that a majority of the Court (though not 
a majority of those voting to overturn) indicated publication would 
be harmful to the nation, and that a majority of the Court indicated 
publication might be sufficient grounds to sustain a conviction for 
violation of the Espionage Act." 

While reasonable restrictions on the time, place, and manner of 
expression have been permitted, e.q.. whci-e necessary to prevent inter- 

1 <•<• with traffic and overlapping use by other would-be speal 
where there were captive audiences. 7 where a forum wns intended to 
serve a compel ing u^e. 8 or where necos^ary to prevent disturbances by 
loudspeakers, 9 judicial restrictive orders d<> nol fall within the ambit 

■ Brief for Petitioner! tit 48, "Ktbrtuikn Pre§n imociation v. Stuart, <nip>n. 

< >> . (Job v. xru- HampiMre, 812 i 560 | 1041). 

• nn v. Citv of ShaXer Height* 418U.S 208(1074) 
\dderlev \. Florida. 88.1 r.s. 80 (106i 

■ Ko\ act v. Cooper, 386 U.S. 77 (11 


of this exception. It is true that they generally remain in effect only 
for the duration of a trial. But they restrict speech on the basis of 
its content and over an extended period of time and thus bear only a 
linguistic similarity to the situations the time, place, and manner 
exception is intended to encompass. 

The burden of justifying a prior restraint falling outside the "time, 
place, and manner" qualification is so heavy that it has never been 
met in any case which has come before the Supreme Court. Dicta 
have indicated only a very narrow class of cases in which it might 
conceivably be met : When the nation "is at war," Schenck v. United 
States, 249 U.S. 47, 52 (1919), "no one would question that but the 
government might prevent actual obstruction to its recruiting service 
or the publication of the sailing dates of transports or the number 
and location of troops." Near v. Minnesota, 283 U.S. 697, 716 (1931). 
See New York Times Co. v. United States, 403 U.S. 726 (1971) 
(Brennan, J., concurring). 

Fair trial-free expression cases do not fall within the narrow list 
of instances which the Court has indicated might be sufficient to 
justify prior restraints, and one can only speculate whether the Court 
might be willing to create another special exception to cover cases 
where the impartiality of a jury was threatened. The Tenth Circuit 
has gone so far as to argue that prior restraints in the fair trial-free 
expression context are preferred over subsequent restraints because 
they provide more specific notice of proscribed conduct. 10 This argu- 
ment seems to misread consistent Supreme Court precedents and mis- 
construe the vital policy which gave rise to those precedents. As the 
Court emphasized in 1975 : 

The presumption against prior restraints is heavier — and the degree of pro- 
tection broader — than that against limits on expression imposed by criminal 
penalties. Behind the distinction is a theory deeply etched in our law: a free 
society prefers to punish the few who abuse rights of speech after they break 
the law than to throttle them and all others beforehand. It is always difficult 
to know in advance what an individual will say, and the line between legitimate 
and illegitimate speech is often so finely drawn that the risks of freewheeling 
censorship are formidable. 11 

The plain message to be taken from these cases is that if prior re- 
straints on speech to safeguard a fair trial are ever permitted, they 
will be permitted only upon a showing of a threat even more evident 
and more imminent than that required in the "contempt by publica- 
tion" cases. 

c. The Fair Jury Trial Cases 
The Supreme Court's early fair trial-free expression decisions came, 
as noted, in cases where people had been held in contempt for publish- 
ing information allegedly prejudicial to proceedings before a judge or 
grand jury. In more recent decisions, the focus has shifted to jury ver- 
dicts challenged on the ground that prejudicial publicity had deprived 
the defendant of the right to a fair trial. Arguably there might be 
similar cases — cases which would never reach an appellate tribunal 
because of the defendant's constitutional protection against double 
jeopardy — where the state was deprived of its "fair trial rights" by 
a jury prejudiced in favor of the defendant. The constitutional status 
of the state's right is unclear. But if such a right exists, the circum- 

** United States v. Tijerina, 412 F. 2d 661 (10th Clr), cert, denied, 306 U.S. 900 (19o9). 
u Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59 (1975). 

7S-342— 76 3 


stances required before the law would say the state's right had been 
violated would be at least as stringent as those required of a similar 
claim by a defendant. 

Understanding the circumstances under which the Court has held 
that prejudicial publicity has deprived a defendant of the right to an 
impartial jury is therefore fundamental to this study. For it is 
primarily under those circumstances that there may be a substantial 
conflict between the rights of fair trial and free press. 

In Marshall v. United States, 360 U.S. 310 (1959), the defendant 
was convicted of dispensing drugs without a prescription. During 
the trial, seven jurors were exposed to newspaper stories reporting 
that the defendant had previously boon convicted of forgery, that he 
and his wife had been arrested for other narcotics ofl'enses, and that 
he had practiced medicine without a license. This information had 
been held inadmissible by the trial court because its probative value 
was very low and its prejudicial effect likely to be high. All seven 
jurors told the judge that they would not be influenced by the news 
articles, and the judge refused to grant a mistrial. In a per curiam 
opinion, the Supreme Court reversed the conviction but chose to rely 
on its "supervisory power to formulate standards for enforcement 
of the criminal law in the federal courts" rather than the fair trial 
requirements of the Sixth Amendment. The principle behind the deci- 
sion, applicable only in federal courts, was "that persons who have 
learned from news sources of a defendant's prior criminal record are 
presumed to be prejudiced." [As summarized in Murphy v. Florida, 
421 U.S. 794. 798 (1975).] 

Two years after Marshall, the Court confronted the constitutional 
dimensions of juror bias. In Irvin v. Dowd* 366 U.S. 717 (1961), it 
vacated and remanded a murder conviction where despite a "pattern 
of deep and bitter prejudice" which had been "shown to be present 
throughout the community." 366 U.S. at 727, a second change of venue 
had been prohibited by state law. 

The Court recognized that it is often impossible to assure that none 
of the iuror^ have preconceived notions regarding guilt or innocence, 
366 TLS, at 722-23: 

Tt is not required . . . that the jurors be totally Ignorant of the facta and 
ISBnes involved. In these days of swift, widespread and diverse methods of com- 
munication, an important case can he expected to arotfae the interest <>f the 
pnblic in the vicinity, and scarcely any of thos<> best qualified to serve as jurors 

will not have formed some impression or opinion ;is to (he merits of the case. 

This is particularly true in criminal eases. To hold thai the more existence <>f 
any preconceived notion ns to the guilt or innocence of an accused, without 
more, is sufficient to rebut the presumption of a prospective juror's Impartiality 
would he to establish an Impossible standard. Tt Is sufficient if the juror can lay 
aside his impression or opinion and render a verdict based on the evidence 
-1 in court [Citations omitted.] 

The Court went on to rule thai the test was "whether the nature and 
strength of the opinion formed are Mich as in the law necessarily . . . 
the presumption of partiality," and thai H was the duty of the 
appellate courl "to independently evaluate <lie voir dire testimony 
of the impaneled jurors." 366 U.S al 723. Applying this standard 
to :i situation where adverse publicity had permeated <1>< 4 small town 
in which the trial took place and where ninetv percent of the 370 
prospective jurors and two thirds of those actually seated on Hie jury 
believed the defendant was guilty; 6he Court held thai where so many 


had admitted prejudice the jurors' assurances of impartiality could 
be given little weight. 366 U.S. at 728. 

The following year, Teamster President Dave Beck asked the Court 
to reverse his embezzlement conviction on the ground that, regard- 
less of the jurors' testimony to the contrary, the publicity surround- 
ing the trial had inherently prevented the selection of an impartial 
jury. The decision affirming Beck's conviction, Beck v. Washington, 
369 U.S. 541 (1962), helped to clarify both the limits and the heavily 
factual orientation of the Irwin principles. Noting that the intensity 
of the adverse publicity had greatly diminished by the time of the 
trial, that few of those examined on voir dire had admitted any opinion 
as to the defendant's guilt, and that all of those who had admitted 
holding an opinion on the subject had been dismissed, the Court ruled : 
"We cannot say the pretrial publicity was so intensive and extensive 
or the examination of the entire panel revealed such prejudice that 
a court could not believe the answers of the jurors. . . ." 369 U.S. at 

Rideau v. Louisiana, 373 U.S. 723 (1963), involved a fact situation 
similiar to that of Irvin v. Dowd. A twenty-minute television him 
of the defendant's confession had been made with the active coopera- 
tion of law enforcement officials. A change of venue had been denied 
despite the repeated local broadcasting of the film in which the de- 
fendant, unassisted by counsel, had confessed to robbery, kidnapping, 
and murder. The decision reversing the conviction went be} T ond Irvin 
to hold, "without pausing to examine a particularized transcript of the 
voir dire examination," that such a situation was inherently preju- 
dicial and that the refusal to grant a change of venue constituted 
reversible error. 373 U.S. at 727. 

In the recent case of Murphy v. Florida, 421 U.S. 794 (1975), the 
Court further clarified the burden which must be met before a con- 
viction will be set aside because of prejudicial publicity and reem- 
phasized that total ignorance of the case was not required of 
prospective jurors. Seven months before the trial, numerous news- 
paper articles had reported Murphy's conviction for murder and 
his guilty plea to a federal indictment involving stolen securities. 
Some of the jurors had a vague recollection of the robbery with which 
he was charged in the instant case, and each had some knowledge of 
his past crimes. The Court explicitly rejected Murphy's claim that 
the Marshall principle (creating a presumption of prejudice whenever 
jurors have learned of a defendant's prior criminal record) was ap- 
plicable to state courts and emphasized that the principle had never 
been accorded the status of a constitutional requirement. 421 U.S. at 
798. The;Court held that, given assurances by the jurors that they 
could be impartial and in the absence of a "sufficiently inflammatory" 
atmosphere in the community, ¥1\ U.S. at 802, a state court's finding 
that its jury was impartial would not be reversed unless the defendant 
eoulcl demonstrate "the actual existence of such an opinion in I 1 "- 
mind of the juror as will raise the presumption of partiality." 421 
U.S. at 800. 

The facts of Murphy did not produce an explanation of the cut 
status of the Marshall principle in the federal courts. But the Court's 
holding that it could not "conclude, in the circumstances presented in 
this case, that petitioner did not receive a fair trial." \'2\ U.S. at 803, 


together with the holding in Beck and the language in Irvin acknowl- 
edging the near impossibility of finding jurors who will not have 
formed some opinion as to the merits of the case, leave Marshall's 
viability in doubt. More important, the refusal to elevate the Marshall 
rule to constitutional status means that restrictions on free expression 
cannot be justified simply by showing that publication will make it 
impossible to impanel a jury which has not been exposed to some 
prejudicial information. A vital constitutional right must weigh very 
heavily against a doctrine having no constitutional sanction. 

Murphy, Rideau, Becl\ and Irvin tell us a good deal about the 
circumstances in which the rights of a free press may arguably con- 
flict with the right to a fair trial before an impartial jury. In none 
of these cases, however, did the Court discuss the need to prevent 
prejudicial publicity. Rather, it focused on the trial judge's responsi- 
bility to grant a change of venue when prejudicial publicity had 
occurred prior to the trial, or to grant a mistrial if the jurors 
were exposed to highly prejudicial information after the trial Began, 

Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 
384 U.S. 333 (1966) , on the other hand, emphasized the duty to prevent 
prejudicial publicity from reaching the jurors and to insure that 
reporters in the courtroom do not disrupt the decorum of the trial. 
While dealing primarily with the right to a fair trial rather than the 
rights of a free press, these decisions give us a better indication of 
how conflict between these two principles is to be avoided. 

In Estes, a divided Court reversed a conviction for swindling, hold- 
ing that the televising of a "heavily publicized and highly sensational" 
trial inherently infringed the defendant's right to a fair trial. 381 U.S. 
532, 590-91 (Harlan, J., concurring). Justice Clark's plurality 
opinion, joined by three other members of the Court, would bar 
television not only from sensational trials but from all trials. 

In explaining his view that televising of such proceedings was al- 
ways inherently prejudicial, Justice Clark emphasized the conscious- 
ness of the jurors, witnesses, and judge that the trial was being telecast 
and the possibility that jurors and witnesses would be influenced by 
viewing reports of testimony. 381 U.S. at 54.5-40. He discounted the 
relative unobtrusiveness of the cameras at the trial, pointing out that 
these distractions were not caused solely "by the physical presence of 
the camera,'? 381 U.S. at 546. 

Since the problems referred to are also present to a lesser extent in 
any published report of a trial, one might assume that the difference 
between print and television would be only a matter of degree and that 
if television may be buried in :mv notorious trial other forms of re- 
porting might he barred in some circumstances. Yet elsewhere in the 
opinion, dark made clear that it was only the presence of the cameras 
in the court room which was to he barred not the reporting Itself. 

It is true that the public has the r I «_r 1 1 1 to be informed as to what occurs in its 

courts, hut reporters of all media, Including television, are always present if they 

wish to he and are plainly free to report whatever OCCUTS in open courl through 
their respective media. This WSJ settled in Bridge* v. California . . . and Pcnnc- 
kawp v. Florida . . ., which we reaffirm. [381 U.S. at 541-42.] 


The three members of the Court who joined Justice Clark in that 
opinion similarly agreed in a separate concurrency: 

So long as the television industry, like the other communications media, is free 
to send representatives to trials and to report on those trials to its viewers, there 
is no abridgement of the freedom of the press. [381 U.S. at 585.] 

In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme Court 
reversed a murder conviction on the ground that the trial judge had 
not fulfilled his duty to control disruptive influences in the courtroom 
and to protect the defendant from the effects of prejudicial publicity 
which had saturated the community. Although there had been massive,, 
extremely prejudicial pretrial publicity and all but one of the jurors 
had read about the case in the newspapers, a trial judge in the midst 
of his own campaign for reelection had denied motions for continuance 
and change of venue. 384 U.S. at 345, 348, 354. The jurors had not been 
sequestered, had not been given adequate instructions concerning their 
obligation not to read or listen to extrajudicial reports about the case, 
and in fact had been "thrust into the role of celebrities by the judge's 
failure to insulate them from reporters and photographers." The judge 
had allowed reporters to take over practically the entire courtroom, 
and "bedlam reigned at the courthouse during the trial," 384 U.S. at 
353, 355. In considering the action the trial judge should have taken 
to safeguard the rights of the defendant, the Supreme Court empha- 
sized the important role of the press in the judicial process, 384 U.S. 
at 349-51 : 

The principle that justice cannot survive behind walls of silence has long been 
reflected in the "Anglo-American distrust for secret trials." In re Oliver, 333 U.S. 
257, 26S (1948). A responsible press has always been regarded as the handmaiden 
of effective judicial administration, especially in the criminal field. . . . The press 
does not simply publish information about trials but guards against the miscar- 
riage of justice by subjecting the police, prosecutors, and judicial processes to 
extensive public scrutiny and criticism. This Court has, therefore, been unwilling 
to place any direct limitations on the freedom traditionally exercised by the news 
media for "[w]hat transpires in the court room is public property [citing Craig 
v. Harney] .... 

But [freedom of the press] must not be allowed to divert the trial from the 
"very purpose of a court system ... to adjudicate controversies ... in the 
calmness and solemnity of the courtroom according to legal procedures, [citation 
omitted.] Among these "legal procedures" is the requirement that the jury's 
verdict be based on evidence received in open court, not from outside sources. 

The Court ruled that, given the massive publicity, the judge should 
have: (1) adopted stricter rules governing the use of the courtroom 
by newsmen, (2) insulated the witnesses, (3) made "some effort to 
control the release of leads, information, and gossip to the press by 
police officers, witnesses, and the counsel for both sides," and (4) 
raised the possibility of sequestering the jury. 384 U.S. at 358-59, 363. 
In addition, wherever "there is a reasonable likelihood that prejudi- 
cial news prior to trial will prevent a fair trial, the judge should con- 
tinue the case until the throat abates, or transfer it to another 
county . . ." 384 U.S. at 363 (emphasis added). Moreover, the Court 
suggested, reporters "who wrote or broadcast prejudicial stories, could 
have been warned as to the impropriety of publishing material not 
introduced in the proceedings." 384 U.S. at 362 (emphasis added). 


There has been much conjecture as to what Mr. Justice Clark meant 
by this last suggestion. 12 Earlier in the opinion, the Court had said 
that since it concluded the traditional methods of guarding against 
prejudicial publicity would have been sufficient to guarantee Sheppard 
a fair trial, it would not "consider what sanctions might be available 
against a recalcitrant press." 384 U.S. at 358. In this context, the 
suggestion appears to have contemplated nothing move than advice 
to the press as to the problems which publication of material not 
introduced into the proceedings could create. This interpretation is 
consistent with the Court's express reaffirmation of the rights of the 
press later in the opinion : "Of course, there is nothing that proscribes 
the press from reporting events which transpire in the courtroom," 
384 U.S. at 362-63. 

Summary: The Fair Jury Trial Cases. — The fair trial cases establish 
that the mere fact that jurors have heard something about a case 
prior to trial will not create a presumption of prejudice. If the jurors 
state that they will be able to render a fair and impartial verdict on 
the evidence, a conviction will not generally be set aside unless (1) 
actual prejudice can be shown (as in Irvin), or (2) the publicity lias 
been so highly prejudicial, or so massive or pervasive (as in Rideau, 
Sheppard, and Estes) that prejudice must be presumed. 

In each of the cases reversed (with the exception of the apparently 
discredited Marshall case), the trial court had either denied a change 
of venue and/or, as in Esfes and Sheppard, had actively cooperated 
in efforts which would obviously increase prejudicial publicity. While 
the effect of prejudice on the defendant is the same whether it has 
occurred because of the judge's failure to take simple precautions or 
despite the judge's strenuous but unsuccessful prophylactic efforts, 
one senses that the Supreme Court was reversing partly as a sanction 
against judicial negligence. Thus Sheppard announced that a continu- 
ance or change of Avenue was to be granted whenever there was a 
"reasonable likelihood" that a fair trial would otherwise be pre- 
vented. Murphy, on the other hand, could be read as an indication 
that where the judge has conscientiously attempted to prevent un- 
necess try prejudice the Court will be slow to throw out a conviction. 

Only Sneppard and Estes give us much indication as to what 
affirmative steps, beyond barring television from the courtroom and 
granting a change of venue or a continuance, a trial court may he 
expected to take to insure a fair trial. 

Estes, while prohibiting the presence of television equipment in the 
courtroom, made clear that it proposed no restraint on television 
reporting. SheppardPs dicta go beyond Estes explicitly to disapprove 
any direct restrain! on reporting of events transpiring in open court. 
More important than the Court's language, however, is its approach 
to the problem. Tn recommending so many alternatives to prevent 
prejudice without finding any need to consider imposing any direct. 
restraints on reporting — whether of events transpiring in or out of 

the courtroom the Sheppard Courl implicitly followed the rule that 
all other possible means must he utilized before any direct restraints 

Mill even be contemplated. 'This is consistent with the Court's doctrine 
in other First Amendment cases that curtailment of free exprcs- 

12 Bee ., Donald If. Oillmoor, Judicial Restraints on the Press (Freedom of Informa- 
tion Foundation, n)74). 


sion can be justified only when it is the least drastic means available 
to secure a compelling state interest. See Carroll v. President & Com- 
missioners of Princess Anne, 393 U.S. 175, 183 (1968) ; Shelton v. 
Tucker, 361 U.S. 479, 488 (1960). 

Above all, when faced with a trial involving extraordinary pub- 
licity and sensationalism, the Court found that other means of pre- 
venting prejudicial publicity would have sufficed and recommended 
no direct restraints on reporting whatsoever. If such restraints were 
not necessary in the Sheppard trial, it is difficult to foresee any situa- 
tion which would require or justify them. 

d. Recent Indications of Judicial Opinion Regarding Direct 

A review of recent Supreme Court and federal court of appeals 
decisions reveals only two suggestions that direct restraints on the 
press may be an appropriate way of dealing with the problem of 
prejudicial publicity. Both suggestions are contained in dicta. 

In Branzburg v. Hayes, 408 U.S. 665 (1972) (5-4), dealing with 
whether journalists could be required to disclose confidential 
sources, the plurality opinion pointed out in passing that journalists 
"may be prohibited from attending or publishing information about 
trials if such restrictions are necessary to assure a defendant a fair 
trial before an impartial tribunal." 408 U.S. at 685. 

In context, however, this may be a misleading attempt to restate 
prior holdings. An appellate judge commented : 

It seems unlikely that [Justice White] . . . meant for this dictum to be read 
too literally since he immediately cites Sheppard, Estes and Rideau as support 
for this proposition. . . . [E]ach of these cases expressly and explicitly disavows 
any suggestion that newsmen can be prohibited from publishing reports of what 
transpires in open court. 

United States v. Dickinson, 465 F. 2d 496, 507 n.14 (5th Cir. 1972), 
cert, denied, 414 U.S. 979 (1973). 

Moreover, "[t]here was no indication [in the Branzburg opin- 
ion] . . . that the standards for determining the propriety of resort 
to such action would materially differ from those applied in other 
decisions involving prior restraints of speech and publication." 
Powell, J., as Circuit Justice, Times-Picayune Publishing Corp. v. 
Schulingkamp, stay granted, 419 U.S. 1301, 1307 (1974), appeal dis- 
missed as moot, 420 U.S. 985 (1975). 

More recently, the Federal Court of Appeals for the Third Circuit, 
reiving on the Branzburg dicta and on language in Sheppard permit- 
ting restrictions on parties, lawyers, jurors, witnesses, and court offi- 
cials, assumed, without deciding, that a trial court had the power to 
prohibit non-parties from publishing information which would im- 
peril the defendant's right to a fair trial. The Court did not indicate 
its view of the circumstances which must be shown before such a 
restriction would be permissible. United States v. Schiavo, 504 F.2d 1 
(3rd Cir.), cert, denied. 419 U.S. 1096 (1974). 

Leaving these ambiguous dicta aside, federal and state appellate 
courts have generally held that court orders directly imposing re- 
straints on the press are unconstitutional. In United States v. Dickin- 
son, 465 F.2d 496 (5th Cir. 1972), cert, denied, 414 U.S. 979 (1973), 
the only Federal Court of Appeals decision on point, the Fifth Cir- 


cuit declared that "a blanket ban on publication of court proceedings 
so far transgresses First Amendment freedoms that [it] . . . 'cannot 
withstand the mildest breeze emanating from the Constitution.' " 465 
F.2d at 500. Elsewhere in the opinion, the Court seemed to qualify 
this holding slightly, saying that even if " — and that •/ is a very big 
one indeed — " curtailment of the right to publish court proceedings 
might be justified in some extraordinary circumstances, the present 
case did not present such circumstances. 465 F.2d at 507. 

The Court noted that although the case had been well publicized 
and future jury proceedings were likely, the proceeding to which the 
ban applied was a non-jury matter where trial on the merits would not 
follow immediately, that there was no "carnival" atmosphere, and 
that there were "available alternative cures for prejudicial publicity 
far less disruptive of constitutional freedoms than an absolute ban on 
publication." 465 F.2d at 507-08. Despite this qualification, the Dick- 
inson opinion gave fair warning that the Court was unlikely to uphold 
any such order in any future case, 465 F.2d at 506, 507 : 

Censorship in any form — judicial censorship included — is simly incompatible 
with the dictates of the Constitution and the concept of a free press. . . . [X]o 
decision, opinion, report or other authoritative proposal has ever sanctioned by 
holding, hint, dictum, recommendation or otherwise any judicial prohibition of 
the right of the press to publish accurately reports of proceedings which transpire 
in open court. 

Though a reading of the Dickinson opinion leaves a strong feeling 
that the Fifth Circuit would forcefully reverse any attempt to impose 
restraints on reporting of trial-related events occurring out of court, 
that issue was neither posed in the case nor dealt with in the decision. 
In four recent cases where it has been posed before state appellate 
courts, however, they have uniformlv held the restraints unconstitu- 
tional. Oliver v. Postel, 30 N.Y. 2d 171, 331 N.Y.S. 2d 407. 282 N.E. 2d 
306 (1972); State v. Sperry, 79 Wash. 2d 69, 483 P.2d 608, 
cert, denied, 404 U.S. 939 (1971) ; Atlanta Newspapers, Inc. v. State, 
216 Ga. 399, 116 S.E. 2d 580 (1960) ; Worcester Telegram & Gazette, 
Inc. v. Commonwealth, 354 Mass. 578, 238 N.E. 2d 861 (1968). 

e. Summary : Validity of Direct Restraints on the Press 
The early Supreme Court decisions established that the contempt 
power could be used to punish publication only in the face of a clear 
and present danger to the administration of justice. Despite waning 
use of the clear and present danger standard in other First Amend- 
ment areas, it seems to have continued vitality in fair trial-free 
expression cases. 

Restraints on expression imposed by court order must withstand 
not only the clear and present danger standard, but also the heavy 
presumption against the constitutional validity of prior restraints. If 
a threat to the fairness of a trial can ever bo sufficient to lift the heavy 

burden of justifies^ ion which attaches to all prior restraints, it must he 
a threat even more evident, even more serious, and even more immi- 
nent than that required in the subsequent restraint cases. 
The clear and present danger standard will generally preclude 

puniahnient for contempt by puolical ion in non-jury trials. It follows, 
a fortiori, that prior restraints on publication in sueh trials would be 
unconstitut ional. A more difficult question is posed, however, when a 


case is to be decided not by a judge trained to disregard inadmissible 
evidence, but by a lay jury. 

The answer to this question requires an understanding of the cir- 
cumstances in which the Court has held that prejudicial publicity 
deprived a defendant of an impartial trial. It is under such circum- 
stances that the potential for conflict between the rights of fair trial 
and free press is greatest. 

A court clearly has an obligation to take steps to insure that the 
defendant receives a fair trial by an impartial tribunal protected from 
the effects of prejudicial publicity. A change of venue or a continuance, 
for example, should be granted whenever there is a reasonable likeli- 
hood that prejudice will otherwise prevent a fair trial. 

The right to a fair trial, however, is not a right to a panel of jurors 
who have never been exposed to any prejudicial information regarding 
the defendant. Unless actual bias is demonstrated, or unless publicity 
has been so highly prejudicial and so massive as to pervade the entire 
community, the jurors' affirmations of impartiality may be believed by 
the trial court. 

Whether the court uses the "clear and present danger" test or 
another of its First Amendment standards, curtailment of freedom 
of expression will apparently be permitted only where it is the least 
drastic means available to secure a fair trial. Yet there has never been 
a case in which the Supreme Court has reversed a conviction because 
of the failure of the trial judge to impose direct restraints on the 
press or even suggested with regard to a concrete factual situation that 
such restraints would be appropriate. Though there have recently 
been general suggestions to that effect in the dicta of the Supreme 
Court's plurality Branzburg opinion, and the Third Circuit's Schiavo 
opinion, neither of those cases indicated that the standard for deter- 
mining the permissibility of the restraints would be any less demanding 
than that required by earlier decisions. They seemed to indicate only 
the theoretical possibility that there might conceivably be a situation 
which would meet that standard. 

The Sheppard and Estes opinions, like the early case of Craig v. 
Harney, declare explicitly that the press has a right to report what 
transpires in open court. Moreover, these cases indicate that even in 
the most sensational cases imaginable, other means of controlling pub- 
licity will be sufficient, and direct restraints on the press will not be 

As this report is written, the Supreme Court is considering the case 
of Nebraska Press Association v. Stuart, in which members of the 
press have challenged direct restraints imposed in a highly sensational 
jury trial for murder. The Court's decision in that case should supply 
some definitive answers to questions regarding direct restraints on the 
press. 13 

%. Restraints on Trial Participants 

Faced with the difficult constitutional problems inherent in any 
direct attempt to impose a prior restraint on the press, many courts 
have sought to prevent prejudicial publicity through orders prohibit- 
ing comment on pending cases by counsel, parties, or witnesses. These 

\" See Addendum, infra p. 81. 
78-342— 7G 4 


orders pose three kinds of constitutional problems. First, they may 
arguably be an infringement of the free speech rights of those 'whose 
comment is proscribed. Second, they may be viewed as an intentional 
effort to restrict the freedom of the press by stopping the news at its 
source. Third, they may provide a roundabout means of actually pun- 
ishing the reporter for publishing. Though in express terms they 
proscribe only the release of information to the press, "the reporter 
may be caught in a cross-fire between the court and the source of infor- 
mation, when the court tries to find out which of the participants . . . 
violated the gag order by leaking the prohibited information to the 
press." 14 This is what happened in Farr v. Superior Court. 2:2 Cal. 
App. 3d 60. 99 Cal. Rptr. 342 (2d Disk), cert denied, 409 U.S. 1011 
I 1971). After Branzburg v. Hayes, 408 U.S. 665 (1972), it is clear 
that reporters can be punished for contempt if they refuse to disclose 
their sources in such a situation. 

a. Another Suggestion from Sheppard 
The Sheppard opinion suggested some restraints on trial partici- 
pants when it declared, 384 U.S. at 361, 363 : 

The trial court might well have proscribed extra-judicial statements by any 
lawyer, party, witness or court official which divulged prejudicial matters, such 
as the refusal of Sheppard to submit to interrogation or take any lie detector 
tests; any statement made by Sheppard To officials; the identity of prospective 
witnesses or their probable testimony; any belief in guilt or innocence; or like 
statements concerning the merits of the case. 

The courts must take such steps by rule and regulation that will protect 
their processes from prejudicial outside interferences. Neither prosecutors. 
coimsel for defense, the accused, witnesses, court staff nor enforcement officers 
coming under the jurisdiction of the court should be permitted to frustrate its 
function. Collaboration between counsel and press as to information affecting 
the fairness of a criminal trial is not only subject to regulation, but is highly 
censurable and worthy of disciplinary measures. 

However, the recommendation is difficult to evaluate for three 
reasons : 

(1) The Supreme Court made so many su<r<restions as to things the 
trial court should have dqne differently that \\ is difficult to assign any 
particular suo;<restion the weight of a holding or the lesser weighi of 
dicta. The label, of course, makes little difference in itself. But here 
it is unclear to what extenl the Court had considered the implications 
and possible problems of its surest ions. Indeed none of the parties 
seriously pressed upon the Oourt the First Amendment values :it 
stake when courts restrain the release of information to the press. 15 

(2) The Court did nothing to spell out the principle behind treat- 
ing each of the specified enteofories °f people — prosecutors, counsel for 

defense, the accused, witnesses, court staff, and enforcement officers* — 
different ly from anvbody else. 

With regard to lawyers, and perhaps to law enforcement officers, 
there is an implication thai they may give up some of their rights 
because of their fiduciary relationshio to the court But the Court did 
not specify to whal extent these rights have been forfeited. Nor are 
we told wherein lies the relevant distinction between the suggestion in 
this case and the decision in Wood v. Georgia^ ^70 U.S. 87fi (1962), 
in which it was held that Wood's position as Bheriff provided no basis 

I* Joel If, Qor!, The Kiohtx of Kmnrfrr* (Now York. 1074). p. 147. 

"Tirir-f of petitioner: P.riff of Respondent! ; Brief! of Amlel Curiae, sneppard v. mom- 
tcell, 884 B, 839 (1066). 


for curtailing his freedom of expression. Th© distinction may be that 
there was no evidence Wood's expression interfered with the per- 
formance of his duties. Or it may be that he had been given no special 
access to information regarding the pending jury investigation — but 
this is only conjecture. 

The Court did not explain why defendants are entitled to less First 
Amendment protection than others. Similarly, no explanation was 
offered as to witnesses, who, after all, may not have volunteered to 
testify, or been indicted, or done anything else except find themselves 
embroiled in someone else's litigation. Possibly, the Court thought 
that the requirements of the criminal justice system were simply more 
likely to override the First Amendment rights of trial participants 
than those of nonparticipants. 

(3) Unfortunately, the Court did not discuss the standard to be used 
in determining the propriety of silencing trial participants. Under the 
circumstances of the Sheppard trial, the Court could well have found 
a serious and imminent threat to the administration of justice: con- 
sequently, a lesser standard than the "clear and present danger'' test 
might not have been found sufficient to warrant the suggested restric- 
tions on release of information. Given the dangers inherent in allowing 
the government to silence citizens simply by making them defendants 
or witnesses in a criminal trial, the Court must not have intended to 
authorize such restrictions in every case. On the other hand, it seems 
to have assumed that restrictions on trial participants are at least 
preferable to direct restraints on the press. Beyond these vague con- 
tours, little is known about the standard of necessity which must be 
met to bring the Court's suggestions into play, or even whether the 
same standard is to be applied to different categories of trial partici- 
pants (e.g., lawyers, witnesses, defendants) . 

b. Decisions in Federal Courts of Appeal 

Three federal courts of appeal have now passed on the constitu- 
tional^ of restraints directed at the speech of trial participants. They 
have reached rather different results. 

(1) The " Reasonable Likelihood" Standard. — In United States v. 
Tijerina, 412 F. 2d 661^ (10th Cir.), cert, denied, 396 U.S. 990 (1969), 
the defendants had violated a pretrial order prohibiting counsel, 
defendants, and witnesses from making any statement regarding the 
jury, the merits of the case, the evidence, the witnesses, or rulings of 
the court. 412 F. 2d at 663. The Court relied on the Sheppard opinion 
to rule that a " ^reasonable likelihood'* of prejudicial news which would 
make difficult the impaneling of an impartial jury" was sufficient to 
justify the order. 41 2 F. 2d at 66(5 (emphasis added). 

Moreover, the text of the order upheld demonstrates that it required 
only a "reasonable likelihood that prejudicial news prior to the trial 
would render more difficult the impaneling of a jury'' 412 F. 2d at 
663 n.l (emphasis added). The Tenth Circuit may have been re- 
quiring only that the publicity make the impaneling of a jury more 
difficult than it would otherwise be — a condition which would pres- 
umably be met in almost any case involving a jury. The court dis- 
tinguished Bridges, Pennekamp, Craig, and Wood, supra, on the 
grounds that none of those cases involved the violation of an order 
of the court. 


But the Tijerina court neglects to give adequate weight to the 
Supreme Court's longstanding warning that any prior restraint on 
freedom of expression "comes to this Court bearing a heavy presump- 
tion against its constitutional validitv." Bantam Books, Inc. v. Suh 
Uvan,S72 U.S. 58,70 (1963). 16 It is uncertain whether the Tenth 
Circuit's effort to distinguish the Bridges line of cases on the ground 
that they did not involve violation of court orders could withstand the 
weight of the prior restraint opinions. 

Nevertheless the "reasonable likelihood" standard — at least as ap- 
plied to restrictions on counsel — has received considerable support. 
It has been adopted in the fair trial-free expression recommendations 
of the American Bar Association 17 and the U.S. Judicial Confer- 
ence, 18 and seems to have been accepted by the Twentieth Century 
Fund's fair trial-free press task force. 19 It was also relied upon to 
uphold restraints on counsel in Younger v. Smith, 30 Cal. App. 3d 
138. 106 Cal. Kptr. 225 (2d Dist. 1973). 

(2) The "Clear and Present Danger" Standard. — The "reasonable 
likelihood" standard stands in sharp contrast to that relied upon in 
the relevant federal courts of appeal cases handed down since Tijerina. 
The Seventh Circuit has repeatedly insisted that "only those com- 
ments that pose a 'serious and imminent threat' of interference with 
the fair administration of justice can be constitutionally proscribed." 
I Icago Council of Lawyers v. Bauer, 522 F. 2d 242/249 (7th Cir. 
1975), cert, denied', 96 S. Ct. 3201 (1976) ; see In re Oliver. 452 F. 2d 
111 (7th Cir. 1971) ; Chase v. Robson, 435 F. 2d 1059. 1061-62 (7th Cir. 
1970). In Chase v. Robson, the court relied on this version of the "clear 
and present danger" standard to vacate an order proscribing public 
statements by counsel and defendents in a case arising out of destruc- 
tion o,f selective service records. 435 F. 2d at 1061. It reaffirmed that 
holding one year later in In re Oliver, supra. 

In Chicago Council of Lawyers v. Bauer, supra, the Seventh Circuit 
became the first federal appellate court to review the validity of the 
rules recommended by the American Bar Association and the U.S. 
Judicial Conference governing extrajudicial statements by attorneys. 
These rules, which impose per se restrictions on broad categories of 
statements, have been adopted as standing orders applicable to all 
rases in most of the federal district courts. In the context of a 
declaratory judgment, the Seventh Circuit reaffirmed its rule that 
restrictions on attorneys could be sustained only if they wore neces- 
sary to protect against a serious and imminent threat to a fair trial 
and wore the Toast drastic moans to that end. 522 F. 2d at 249. It then 
undertook a thorough review of the issues and concluded that the 
challenged restrictions could not pass constitutional muster. 

While the court's language was born of the "clear and present 
danger" cases, its analysis was rooted in a careful balancing of inter- 
ests. The rules might be viewed as the "least burdensome alternative" 
the eourt suggested, if they could contribute significantly to solving 
the problems of prejudicial publicity while "prohibiting only the 
ch of a very small group whoso members are officers of the court 
with a special interest in protecting the integrity of" the judicial 

•rnlnt p.isps nro flflCQSMd more fully, tiipra pp. 8-9. 
M Pre p. ?,7, infra. 
AS. infra. 

■•. 46 18, infra. 


process. 522 F. 2d at 250. Yet there Were important countervailing 
factors. Lawyers "are a crucial source of information and opinion" 
since they are often more credible, knowledgeable, and articulate than 
either their clients or most members of the public. Litigation often 
involves areas of public concern, and lawyers are frequently "in a 
position to act as a check on government by exposing abuses or urging 
action." To argue that such comments can be made after the trial is 
over is to ignore the fact that immediate action may be necessary and 
that the public's attention can best be commanded while the litigation 
is pending. 522 F. 2d at 250. 

The court deemed restrictions invoked against defense counsel in 
criminal cases especially questionable. It noted that the Sixth 
Amendment speaks only of the rights of the accused and not of the 
rights of the government ; that judicial restraints may make it difficult 
for defendants to counter injury to themselves and to their families 
resulting from prejudicial publicity; and that the scales of public 
opinion are weighted very heavily against the defendant after he or 
she has been indicted. 522*F. 2d at 250. 

The court declined, however, to prohibit all restraints on defense 
attorneys. Instead it argued "that public justice is no less important 
than an accused's right to a fair trial." Even more compelling, it 
suggested, was the "mandate" of Sheppard v. Maxwell, 384 U.S. 333, 
363 (1966) , that restrictive rules should cut both ways; that "[n] either 
prosecutors [nor] counsel for defense . . . should be permitted to 
frustrate [the courts'] function." Despite the considerations dictat- 
ing stricter scrutiny of restrictions against defense attorneys, the court 
concluded such restraints were sometimes permissible. 

Nevertheless, the court concluded that the rules recommended by the 
ABA and the Judicial Conference were constitutionally infirm. One 
central constitutional failing pervaded all of the challenged rules: 
No blanket prohibition or per se proscription of certain areas of 
comment could pass the "serious and imminent threat" standard, 
declared the court, without consideration of the actual danger posed 
under the circumstances of a particular case. Nevertheless, the court 
did see a need for specific provisions, establishing a rebuttable pre- 
sumption of a serious and imminent threat, in order to provide 
lawyers with notice of the kinds of statements which might get 
them into legal trouble. With the inclusion of the "serious and 
imminent threat" standard, the court suggested, many of the chal- 
lenged rules could validly serve to establish such a presumption. 
Recognizing that shifting the burden of proof would itself constitute 
a serious limitation on freedom of expression, the court went on to 
examine each provision of the challenged rules to determine whether 
it provided a proper basis for that presumption. 522 F. 2d at 251-50. 

The court held that the challenged restrictions on extrajudicial 
statements during investigative stages could be used as a presumption 
of a serious and imminent threat, but only as to prosecuting attorneys. 
The court reasoned that since the political process is the primary check 
upon prosecutorial discretion it was "imperative that we allow as 
much public discussion as feasible" by defense attorneys as to the way 
that discretion is exercised. Government attorneys, on the other hand, 
could ensure the proper exercise of prosecutorial authority without 
resorting to public opinion. The competing interests necessitated one- 


sided rules. While such a solution might leave prosecutors unable to 
respond to unfair criticism, their response would ultimately come in 
the form of an indictment. 522 V. 2d al 253. 

The court was considerably more lenient in its treatment of the 
rules regulating comments by attorneys between the time of arrest 
or filing of charges and the commencement of trial. While it saw 
little difference in the First Amendment interests at stake during this 
period, it felt that both the possibility of prejudice and the govern- 
ment's interest in preventing the appearance of trial by newspaper 
were considerably more compelling once judicial proceedings had 
actually begun. The court dismissed the argument that an attorney 
might want to "take his case to the public" in order to raise defense 
funds, noting that indigent defendants have a right to counsel at 
government expense. It concluded that the pretrial regulations could 
validly establish a presumption against the speaker, provided that 
abstract discussion of the merits of relevant statutes was not 
prohibited. 522 F. 2d at 255. 

The court's balancing approach led it to condone even broader 
restrictions during jury selection and jury trial. It noted that the 
period of time in which the restriction would be in effect would be 
relatively limited even in the case of a lengthy trial, and that the 
danger of prejudice was especially great during this period. Accord- 
ingly it held that, while the restriction on discussion of "other mat- 
ters" was unconstitutionally vague, any statements relating to the 
trial, parties, or issues in the trial could constitutionally establish a 
presumption of conduct imminently and seriously threatening the 
fairness of a trial. 522 F. 2d at 255-56. The court rejected the conten- 
tion that such a presumption could not be applied to bench trials, 
arguing that some benefit would be derived if prejudicial material 
never come to the attention of the trial judge. 522 V. 2d at 256- 57. 

The court held that post-trial comments made prior to sentencing 
"could never be deemed a serious and imminent threat" to the fair 
administration of justice, since judges are entitled to consider almost 
:m y factor th.-v deem relevant in exercising their sentencing discretion, 
522 F. 2d at 257. 

Finally, the court held that the restrictions on comment relating 
to civil proceedings could not serve as the basis for a presumption of 
validly prohibited conduct. The court again proceeded by balancing 
the fair trial interests protected by the rule against the affected m! cr- 
ests in freedom of expression. It began by noting that the goal 01 
erving jury impartiality, while certainly important, is not as com- 
pelling in civil disputes as in criminal prosecutions. Since civil liti- 
gation generally lasts much longer than criminal litigation, rules nro- 
vidinff for blaiikel coverage of the period of "investigation or litiga- 
tion"™ civil cases would have a profound impact on Urst Amendment 

interests. _ . . . _. 

A civil case, the court observed, might lasl For years |ust m the 
discovery stage and might be extended by many years of appeals. 
1 1 the term "investigation" were broadly construed, speech might be 
restricted for years before a complaint was even filed. Since civil 
litigation often involve- important social or political issues, such 
broad restrictions were constitutionally impermissible. 522 E\2d at 


Since the Seventh Circuit cases all involved appeals by silenced 
trial participants, they do not tell us whether restraints on the release 
of information would be held to violate a right of the media to gather 
news or a right of the public to information regarding pending liti- 
gation. The Sixth Circuit in CBS v. Young, 522 F.2d 234 (6th Cir. 
1075), answered this question in the affirmative and applied the 
"clear and present danger" test to invalidate a broad restrictive order. 

In CBS a trial court handling civil damage cases stemming from 
the Kent State shootings had ordered, 522 F.2d 236, that 

In addition to all counsel and Court personnel, all parties concerned with 
this litigation, whether plaintiffs or defendants, their relatives, close friends, 
and associates are ... to refrain from discussing in any manner whatsoever 
these cases with members of the news media or the public. 

The parties to the civil action indicated that they felt the order was 
appropriate, but CBS asked that it be vacated principally because 
it violated the First Amendment right to gather news. The Court 
dealt first with the question of standing, ruling that although the 
petitioner was not made a specific target of the order, it was 
"nevertheless effectively cut off from any access whatever to im- 
portant sources of information about the trial." 522 F.2d at 237. 
Citing dictum from Branzburg v. Hayes that without "some protec- 
tion for seeking out the news, freedom of the press could be eviscer- 
ated,-' 408 U.S'. 665, 681 (1972). the Court concluded that the silence 
order abridged CBS's "constitutionally guaranteed right as a member 
of the press to gather news." 522 F.2d at 238. The court went on to 
note that "the First Amendment guarantee of freedom of the press 
is for the benefit of all the people and not a device to give the press 
a favored status in society," and implicitly held that the public had 
a right to know which embraced a right of access to those restrained 
by the order. 522 F.2d at 238. 

Declaring that "a system of prior restraints of expression bears a 
heavy presumption against its constitutional validity," that restraints 
"must be narrowly drawn and cannot be upheld if reasonable alterna- 
tives are available having a lesser impact on First Amendment free- 
doms," and that the restraints could not "escape the proscriptions of 
the First Amendment" unless there was a clear showing that they 
were "required to obviate serious and imminent threats to the fairness 
and integrity of the trial." 522 F.2d at 238, 240, the court held that 
the presumption against the order had not been overcome. 

The CBS case leaves important points unsettled. Because the order 
issued was so broad — restraining even close friends of all parties in- 
volved in the litigation — it is uncertain whether the court would 
have applied the clear and present clanger standard to a narrower 
order affecting, for example, only counsel and parties. Because the 
circumstances of the case were found to be so far from constituting a 
serious and imminent threat to the administration of justice, it is 
questionable whether the standard to be applied to restrictions on 
expression in civil cases is more rigorous than that to be applied 
in criminal cases. Nevertheless, the Sixth Circuit applies the "least 
drastic means" requirement to restrictive orders and appears to join 
the Seventh Circuit in making serious and imminent threat to fair- 
ness a prerequisite to restrictions on trial participants. 

Now that most district courts have adopted standing rules pro- 
hibiting broad categories of extrajudicial statements by attorneys, 


additional ^ circuit court decisions should be forthcoming. Incon- 
sistent decisions are likely to continue, however, until such time as 
either the Supreme Court or the Congress and state legislatures take 
steps to clarify the conditions under which silence may be required 
of persons closely connected with a trial. 

3. Closing Judicial Proceedings to the Press and Public 

Another way to alleviate prejudicial publicity is to bar the press 
and public from judicial proceedings. When coupled with a ban on 
extrajudicial statements by participants, closure of proceeding? can 
effectively stop much of the trial news from being reported. Even 
standing alone, it substantially inhibits the ability of the pros? to 
gather the news. 

a. The Defendants Right to a Public Trial 

The Sixth Amendment expressly guarantees the defendant the 
right to a public trial. This right is not unlimited. Exclusion of all 
or part of the public has been permitted, for example, to eliminate 
overcrowding; to preserve the secrecy of grand jury proceedings; 
to protect secrets regarding the operation of an anti-sky jacking pro- 
cedure; to prevent exposure of youthful spectators to testimony re- 
garding sexual offenses: and to preserve the decorum of the court- 
room where disruptions threaten to interfere with the administration 
of justice. Levine v. United States, 362 U.S. 610 (1960) : United States 
v. Bell, 464 F.2d 667 (2d Cir.), oert denied, 409 U.S. 991 (1972): 
United States v. Kobli. 172 F.2d 919. 922 (3rd Cir. 1949). 

But before exclusion of press and public can be permitted over 
the defendant's objection, there must be "compelling reasons." 
United States v. Clark, 475 F/M 240. 246 (2d Cir. 1973). See also 
\ne v. United States. 362 U.S. at 618 (I960). Thus in United 
States v. Clark, the possibility that witnesses might inadvertently 
reveal part of a secret anti-skyjacking procedure, where that pro- 
cedure was not the intended subject of examination, was held in- 
sufficientlv compelling to justify depriving the accused of the right 
to a public trial. 475 F.2d at 246. 

It is unlikely that the state's interest in insuring a fair trial would he 
found sufficiently compelling to justify depriving the defendant of the 
constitutional right to a public trial. It would appear, therefore, that 
if the defendant objects to the exclusion of the press and the public, 
the possibility that his or her conviction may be overturned on appeal 
for violation of the right to a public trial will be suflicient to protect 
the rights of the pref 

b. Defendant?* Rights Provide Inadequate Protection for the 

Pi, 88 and /'i/I>/ie 

There are. however, three problems with reiving on the defendant's 

object ion t <> :1 niv access to judicial proceedings. 

Fir ' . because the order excluding the press and public is not a final 
order as to defendants, they cannot seek appellate review until the con- 
clusion of the case. I f the defendant wins at the trial level, the decision 
to exclude the pre-- and the public may never be challenged. 

COnd, W the closure of proceedings took place in a criminal trial, 

then defendants could win reversals simply by showing that, they were 
unjustly deprived of the right to a public trial. United States v. Kobli, 

t?2 F. 2d 01ft (3rd Cir. 1049) ; TanMcyw United Sta,', ,. 1 1:> F. 2id 58 


(9th Cir. 1944) ; Davis v. United States, 247 F. 394 (8th Cir. 1917). But 
see Reagan v. Z7>i^Z £tofe«, 202 F. 488 (9th Cir. 1913). But if it took 
place at a non-criminal proceeding, or perhaps even at a pretrial stage 
of a criminal proceeding, then the Sixth Amendment would not di- 
rectly apply. Though the right to a public proceeding is protected by 
the due process clause of the Fifth Amendment, Levine v. United 
States, 362 U.S. 010, 616 (1960), according to In re Oliver, 333 U.S. 
257 (1948), it is not clear that a conviction will be reversed under the 
due process "public trial" guarantee unless actual prejudice can be 
demonstrated. Levine v. United States, 362 U.S. 610 (I960). Thus, 
unless the defendant is able to manage the formidable task of showing 
that actual prejudice resulted from the exclusion of the public, the 
interests of the press and public may go unprotected. 

Third, and most important in a fair trial-free expression context, 
it will often be the defendant who seeks to close the proceedings. 

In light of these factors, the defendant's right to a public trial pro- 
vides the press with very limited protection. This invites the more 
difficult question: Do the press ana public themselves have First or 
Sixth Amendment rights of access to judicial proceedings? The answer 
is unclear. 

c. The Bights of the Press 

The Supreme Court has ruled that the press has no right of access 
to information not generally available to the public. This was 
the explicit basis for its decision in Pell v. Procunier, 417 U.S. 817 
(1974) (6-3), and its companion, Saxbe v. Washington Post Co., 417 
U.S. b43 (1974) (5-4), upholding in the face of press challenges a 
regulation proscribing interviews of prisoners individually designated 
by members of the press. These rulings make dear that members of the 
press have no right of access to judicial proceedings unless the public 
has such a right. 

d. The Rights of the Public 

The First Amendment guarantees not only the right to speak, but 
also the right to listen to those who seek to speak. Procunier v. Mar- 
tinez, 416 U.S. 396, 408 (1974) ; Kleindienst v. Mandel, 408 U.S. 753, 
762-63 (1972) ; Stanley v. Georgia, 394 U.S. 557, 564 (1969) ; Lamont v. 
Postmaster General, 381 U.S. 301, 307-08 (1965) ; Martin v. City of 
Struthers, 319 U.S. 141, 143 (1943). But the problem at issue here is a 
right of access to information which the courts seek to withhold — 
essentially a right to listen to those who would prefer not to speak to 
the public. 

It is clear that the defendant has no absolute right to a private trial. 
Singer v. 'United States, 380 U.S. 24 (1965). This leaves open the pos- 
sibility that the state may have discretion to grant or deny a defend- 
ant's request for closure. If, however, there is a public right to a public 
trial, this right would be controlling at least unless the defendant 
could show some likelihood that admission of the public would preju- 
dice his or her right to a fair trial or unless the state could show some 
other compelling reason for closure. Where such justifications for clos- 
ing a trial are shown in one degree or another, they would presumably 
have to be weighed against the rights claimed by the public. Moreover. 
any member of the public, including the press, would have standing 
to appeal the order immediately. 

78-342—76 o 


The Supreme Court has not explicitly decided — in either a First 
Amendment or Sixth Amendment context — whether the public has a 
right to a public trial. 

The reasonable inference from other First Amendment cases is that 
there is no public constitutional right of access to information or 
sources the goverment seeks to protect, at least where the access sought 
is not related to judicial proceedings. 

In Pell and Saxbe, supra, for instance, the Court expressly based its 
holding on the ground that the regulations at issue did not discriminate 
against the press, since they applied equally to the press and the gen- 
eral public. The dissenting opinions had agreed, that there was no 
special right of press access but had argued that the rights of the 
public, as represented by the media, were infringed by the regulations. 
-117 U.S. at 839-40 (Douglas, J., dissenting); 417 U.S. at 857-64 
(Powell, J., dissenting). While the majority did not explicitly rule 
that there was no public right of access, it is difficult to see how they 
could have upheld the regulation without any weighing of the needs 
of the prison system against the rights of the public, unless they had 
concluded that no such rights existed. 

It is possible, however, that there may be a special public right of 
access to judicial proceedings, based either on the First or Sixth 
Amendments, or possibly on a ''penumbra'' formerly by emanations 
from both those amendments. Cf. Griswold v. Connect '/cut, 381 U.S. 
479 (1965). One indication that the Supreme Court might be willing to 
infer such a right from other constitutional provisions came in Esti % v. 
Texas, where the Court said, "The law, however, favors publicity in 
legal proceedings, so far as that object can be obtained without in just ice 
to the persons immediately concerned." 381 U.S. 532, 542 (1965), quot- 
ing ( Jooley, Constitutional Limitations (Carrington ed. 1927), II. 931- 
32. Three of the four justices comprising the plurality added, 381 
U.S. at 583 : 

[T]he public trial provision of the Sixth Amendment is a "guarantee to an ac- 
cused" designed to "safeguard against any attempt to employ our courts as in- 
struments of persecution." Clearly the openness of the proceedings provides other 
benefits as well: it arguably improves the quality of testimony, it may Induce 
unknown witnesses to come forward with relevant testimony, it may move all 
trial participant! to perform their duties conscientiously, and it gives the public 
the opportunity to observe the courts in the performance ot their duties and to 
determine whether they are performing adequately. 

It is not clear whether tile opinions of these three concurring justices 
intended to recognize a public right of access or only to say that the 
public was an incidental beneficiary of the defendant's right. 

Four di -cut ing just ices in t he case subscribed to the statement that 

"|t | he suggestion that there ate limits on the public's right to know 

what goes on in the courts causes me deep concern." 381 U.S. at till, 
615 i St e war:,. I. .dissenting). 

Putting these three opinions together, it appears that between five 
and eight of the justices participating in the EsUs case recognized 
some public right of access to judicial proceedings. None of these dicta, 
however, gave any indication of the source of this "public right," and 
t heir precedent ial value is unsure. 

No federal appellate court has addressed a situation where a mem- 
ber of the public has asserted a right of :iccess to judicial proceedings. 
There have been four cases, however, in which the courts have com- 
mented on the public right while dealing with claims that criminal 


convictions should be reversed on Sixth Amendment grounds. Some 
commentators have concluded from these opinions that the circuits 
are in disagreement. See, e.g., Annotation, ''Right to Public Trial," 4 
L. Ed. 2d 2128, 2131 (1960). An examination of the facts of the cases 
and the relevant dicta leave that conclusion uncertain. 

In United States v. Kobli, 172 F. 2d 919 (3d Cir. 1949), the Third 
Circuit reversed the conviction of a defendant who had unsuccessfully 
objected to the clearing of the courtroom. While holding that the de- 
fendant had been denied her Sixth Amendment right to a public trial, 
Judge Maris wrote for a unanimous five- judge panel, 172 F. 2d at 

[T]he right . . . accorded to members of the public to be present at a criminal 
trial as mere spectators . . . has been imbedded in our Constitution as an impor- 
tant safeguard not only to the accused but to the public generally .... [It is] 
a basic right which has withstood the test of the centuries. 

In context, however, this may mean simply that the public has an 
interest in seeing that the accused is fairly tried and that the accused 
therefore has a right to require, if he or she so chooses, that the public 
be accorded the right to observe. This is borne out by the court's sub- 
sequent decision in United States v. Sorrentino, 175 F. 2d 721 (3rd 
Cir. 1949). 

Sorrentino arose out of the same case as Kobli in the court below. 
Unlike Kobli, however, Sorrentino had waived his right to a public 
trial and now claimed that such a waiver could not be effective. Again, 
Maris wrote the opinion, this time writing for a three- judge panel. 
The judges, all of whom had participated in the unanimous Kobli 
opinion, were again unanimous in holding : 

While all of these rights are in a broad sense for the protection of the public 
generally they are in a very special sense privileges accorded to the individual 
member of the public who has been accused of crime. ... To deny the right of 
waiver in such a situation would be "to convert a privilege into an imperative re- 
quirement" to the disadvantage of the accused. . . . We hold, therefore, that the 
right to a public trial was one which defendant Sorrentino might waive. [175 
F.2d at 722-23.] 

Since Sorrentino and Kobli were written by the same judge and de- 
cided by the same judges in the same year, they should be construed to 
be consistent with one another. (Of. Annotation, "Right to Public 
Trial," 4 L. Ed. 2d at 2131, which suggests that they represent two dif- 
ferent views.) When read together, they appear to establish only that 
defendants cannot successfully assert the public's right of access to 
win a reversal once they have waived their own Sixth Amendment 
rights ; they tell us little about the rights of the public itself. 

More recently, in United States v. Clark, 475 F. 2d 240 (2d Cir. 
1973), the Second Circuit reversed a conviction because the public had 
been barred from the courtroom without any intentional waiver bv 
the defendant. The court ruled, 475 F. 2d at 246-47: 

Without . . . compelling reasons . . . there was no reason to deprive the ac- 
cused of his right to a public trial. . . .Moreover, because of the importance of 
providing an opportunity for the public to observe judicial proceedings at which 
the conduct of enforcement officials is questioned, the right to public trial should 
extend to suppression hearings rather than permit such crucial steps in the crim- 
inal process to become associated with secrecy. 

While it is possible that this portion of the Clarlz opinion was in- 
tended to establish a public right of access, it may simply mean that 
in light of the public concern the defendant's right to demand a pub- 
lic trial should extend to suppression hearings. 


The only federal appellate decision which seems to speak clearly 
on this issue is the Ninth Circuit's per curiam opinion in Geise v. Ufriti d 
Staffs. 265 F. 2d 059 (9t* Cir. 1959). Geise, like Sorrentino, had 
waived his right to a public trial but asserted on appeal that his waiver 
was ineffective because he could not waive the public's right of a 
Though the court could have dealt with the claim by holding that a 
violation of the public's right would not be grounds for overturning 
the defendant's conviction (cf. Sorrentino), it held instead that the 
"Sixth Amendment right to a public trial is a right of the accused, 
and of the accused only.*' 2G5 F. 2d at 600. Xo explanation was offered 
for this conclusion. One can only speculate as to whether the court 
would say the same thing today, after the Supreme Court's Estea de- 
cision, supra, or as to whether it would reach the same conclusion if 
the public's right were asserted by a member of the public. 

It has been suggested that a number of other cases holding that an 
accused may waive his or her right to a public trial indicate implicitly 
that the right belongs solely to the accused. See, e.g., Annotation, 
"Right to Public Trial," 4 L. Ed. 2d 2128, 2131 n. 8 (1960). It is rea- 
sonable, however, to read those cases as holding only that the accused 
may waive his or her own right, regardless of whether other rights are 
reserved to the public. Since no member of the public asserted such 
rights, the issue simply did not arise. 

It is significant that the only circuit court decisions which even 
arguably have indicated that the public has a right of access were 
cases in which the defendant was held not to have waived his own 
right. They may have intended to establish only that the defendant 
has a right to insist on public access to his or her trial. Similarly, the 
only cases which seem to indicate the public has no right of access 
were cases in which its rights were alleged by a defendant seeking to 
escape the effects of his own public trial waiver. They may be seen 
as holding simply that the defendant has to fish or cut bait; that he 
or she cannot rely on the silent public to provide a second chance at 
trial. These decisions leave the status of a putative public right to open 
judicial proceedings uncertain. 

Moreover, even if it were firmly established that there is a public 
right, it would be hard to weigh that right against the fair trial right 
ol' t he accused or the state's interest in securing a fair trial. It is likely 
a lance would favor the accused; that much is implicit in the 
Estes holding forbidding televising of judicial proceedings on the 
\ 1 that it infringes on the defendant's right to a fair trial. But 
one must question whether the public's right would be outweighed 
when- \ ( r there was a "reasonable likelihood" that public proceedine> 
1 threaten the fairness of the trial, or whenever there was a 'sub- 
stantial threat" that prejudice would result, or perhaps only when 
substantia] likelihood of a "serious" threat. Any number 
mdards are possible. 

B. iM'.vn.w of RESTRICTIVE ORM ' 

/. Final Ordi 

If someone's right to speak or publish or attend judicial proceedings 
is directly restricted by court order, can they immediately appeal the 

r a thoroug h and thoughtful analysis of this subject, sop Douglas Reiiilleinan's 
■ lit article, "Free Press-Fair Trial: Review of Silence Orders," 52 N.C. L. Re 
ii!<7.:, [hereinafter cited as R.-ndleninn]. 


order, or must they await the conclusion of the underlying case? 28 
U.S.C. § 1291 provides for appeal only "from all final decisions of 
the district courts." Nevertheless, the Supreme Court has held that 2S 
U.S.C. § 1292, allowing appeals from certain interlocutory orders, 
decrees, and judgments, indicates a Congressional purpose "to allow 
appeals from orders other than final judgments when they have a 
final and irreparable effect on the rights of the parties." Cohen v. Bene- 
ficial Industrial Loan Corp., 337 U.S. 541, 545 (1949). The purpose 
of the "final decision" rule "is to combine in one review all stages of 
the proceeding that effectively may be reviewed and corrected if and 
when final judgment results." 337 U.S. at 546. Balancing "the incon- 
venience and costs of piecemeal review on the one hand" against the 
"danger of denying justice by delay on the other," Gillespie v. United 
States Steel Corp., 379 U.S. 148, 152-53 (1964), the Court has held 
that an order is appealable if it "finally determine [s] claims of right 
separable from, and collateral to, rights asserted in the action, too 
important to be denied review and too independent of the cause itself 
to require that appellate consideration be deferred until the whole 
case is adjudicated." Cohen v. Beneficial Industrial Loan Corp.. 337 
U.S. 541, 546 (1949) ; see Gillespie v. United States Steel Corp.. 379 
U.S. 148 (1964). 

Silence orders are a final disposition of the right to speak or pub- 
lish, and closure orders are a final disposition of the right to observe. 
The question of their validity must be determined independently of 
the merits of the case in which they are issued. Requiring that appeals 
await the outcome of the underlying case would not serve the interest 
of judicial efficiency. It would serve only to delay relief until it could 
no longer be effective or to prevent review altogether by mooting the 
issue. United States v. Sckiavo, 504 F. 2d 1 (3d Cir.). cert denied, 
419 U.S. 1096 (1974) ; United States v. Dickinson. 465 F.2d 496 (5th 
Cir. 1972), cert, denied, 414 U.S. 979 (1973). Accordingly, such orders 
seem clearly to fall within the bounds of the "collateral order-practical 
finality" doctrine as outlined in Cohen and Gillespie. 

It is also possible that an appeal as of right might be possible under 
28 U.S.C. § 1292(a) (1), which permits appeals from orders grant- 
ing or denying certain interlocutory injunctions. There is consider- 
able disagreement, however, as to whether restrictive orders should 
be classified as injunctions. Moore tells us, for example : 

An order incidental to a pending action that does not grant [part] or all of 
the ultimate injunctive relief sought is not an injunction, however mandatory 
or prohibitory its terms, and indeed, notwithstanding the fact that it purports 
to enjoin. 21 

Arguably, courts should give statutes specifying appellate jurisdic- 
tion a "practical rather than technical construction," Cohen v. Benefit 
rial Industrial Loan Corp., 337 U.S. at 546, treating restrictive orders 
as injunctions for purposes of § 1292, since they prohibit speci- 
fied actions, and are backed up by the power of contempt. - 2 At any 
rate, in light of our conclusion that appeal is available under the 
practical finality doctrine, a definitive resolution of this issue is not 
essential. 23 

21 Moore f 110.20(1) at 233. 

22 Rendleman. p. 132. 

23 This question is thoroughly discussed in id., pp. 132-35. 


Those restricted by silence orders have a right to immediate appeal, 
which at least gets them inside the door of the circuit court. It is 
important to remember, however, that that right standing alone does 
not guarantee effective review. Unless either the restrictive order or 
the underlying proceedings are stayed or measures are taken to expe- 
dite review, 24 the underlying case may still proceed to verdict, either 
mooting the appeal or making relief ineffective. 

One way of seeking speed v review is through a petition for an ex- 
traordinary writ under the All Writs Statute. 28 U.S.C. § 1651. Grant- 
ing of the writ is discretionary with the court, however, and the 
Supreme Court has indicated that such a grant will be strictly scrutin- 
ized when it interferes with the defendant's right to a speedy trial. 

The Seventh Circuit has held that when freedom of extrajudicial 
expression is at stake issuance of writs of mandamus and prohibition 
is appropriate even in criminal proceedings and even when petitioners 
would have standing to pursue an ordinary route of appeal. Chasi v. 
Robson, 435 F. 2d 1050, 1062 (7th Cir. 1970). Relying on the need 
for immediate appellate review, the court reviewed and vacated an 
order restraining the parties from generating any publicity about 
their case, which involved the destruction of draft records. It should 
be noted, however, that the case before the court did not pose a "speedy 
trial" problem, since it was the defendant who was requesting the 
extraordinary writ. 

Additional problems arise if those who are directly restrained by 
the order choose not to appeal. Suppose, for example, that a group 
of reporters seeks relief from an order proscribing statements by trial 
participants. They cannot obtain review by direct appeal, since they 
arc neither parties to the case below nor specifically enjoined by the 
order. In CBS v. Young, 522 F. 2d 284 (6th Cir.' 1975), discussed 
supra } the Sixth Circuit held in a civil case (bat the press did have 
standing under such circumstances and that mandamus should be 
granted if the petitioner could show: (1) basic rights are curtailed by 
the order, (2) there is no available remedy other than a writ, and (3) 
i he case is an extraordinary one involving a basic issue. There is no 
other federal decision addressing (be issue of a reporter's standing in 
sucll a case; '-""' (be very absence of such decisions, however, is enough 
to generate some doubt that other courts would uniformly grant writs 
of mandamus in situations like that the Sixth Circuit confronted in 
CBS v. Young. 

'. Appealing from Punishment After Violation: Problem* of Col- 
lateral /»"/• 
In light of the difficulty of obtaining effective appellate review, 
one may be tempted to violate a restrictive order and litigate its 

constitutionality if and when held to be in contempt. If the chal- 
lenged restriction were contained in a statute, this would be a viable 
road to appellate review. Hut when one violates :i < our! order, a subse- 
quent finding that the order was unconstitutional will not necessarily 
Invalidate sanctions imposed for its violation. 

••Fed. R. A i > 1 1 . I*. '2 provides: "Tn the interest of expediting decision . . . n court of 

appeali may . . . suspend the requirements or provisions of . . . these rules In ■ particular 

i application <>f a party or on its own motion and may order proceeding! in acc< rd- 
ance with its direction." 

• in i!i7".. Rendleman reported tlmt he had been able t<> find only one state case in which 

the media had been able to secure appellate review of n silence order by extraordinary writ. 
Rendleman, p. 1 88. 


Two leading Supreme Court cases, United States v. United Mine 
Workers, 330 U.S. 258 (1947), and Walker v. City of Birmingham, 
388 U.S. 307 (1967), crystallized the principle that, under ordinary 
circumstances, "an order issued by a court with jurisdiction over the 
subject matter and person must be obeyed" until it is reversed on ap- 
peal. "This is true without regard even for the constitutionality of the 
Act under which the order is issued." United States v. United Mine 
Workers, 330 U.S. at 293. In both UMW and Walker, however, the 
Court was careful to point out that there had been sufficient time to 
appeal before the conduct enjoined was to occur and that the injunc- 
tion had more than a "frivolous pretense to validity." Walker v. 
Birmingham, 388 U.S. at 315-16. Indeed, the Court in United Mine 
Workers explicitly declared that a different result would have fol- 
lowed had the grounds for an injunction been frivolous or insubstan- 
tial. 330 U.S. at 293. 

So far, the Fifth Circuit is the only federal court of appeals to 
rule on the applicability of the UMW -Walker doctrine to a case 
involving a restraint on speech, rather than conduct. In United 
States v. Dickinson, 465 F.2d 496 (5th Cir. 1972), cert, denied, 414 
U.S. 979 (1973), the court held a restrictive order patently unconsti- 
tutional but refused to vacate the contempt convictions of reporters 
who had violated it. 

The Dickinson holding may not have closed the door on the possi- 
bility of collateral attack in a situation where obeying the order pend- 
ing appellate decision would have resulted in a significant delay in 
publishing the news. The court said that before the Walker rule would 
be applied, "adequate and effective remedies must be available for 
orderly review of the challenged ruling, and . . . the order must not 
require an irretrievable surrender of constitutional guarantees." 465 
F.2d at 511. In finding both these conditions satisfied, the court noted 
that appellate courts "were available and could have been contacted" 
on the day the order was issued and that the violation did not occur 
until the following day. 465 F.2d at 512. The message seems to be 
that there was at least a possibility the reporters could have gained 
appellate relief without any significant delay in publication. 

Nevertheless, the notion that a review which required delay would 
not be an "adequate and effective remedy" and would "require an 
irretrievable surrender of constitutional guarantees" was apparently 
rejected in dicta : "In the absence of strong indications that the appel- 
late process was being deliberately stalled . . . violation with im- 
punity does not occur simply because immediate decision is not forth- 
coming, even though the communication enjoined is 'news.' " 465 
F.2d at 512. 

Members of the press have objected vehemently to this aspect of 
the Dickinson decision on the grounds that, whereas the United Mine 
Workers and the marchers in Walker had ample time to appeal before 
the scheduled commencement of their actions, "even a minor delay 
in the publication of news can prove devastating to the rights of the 
public and the media." Brief Amicus Curiae of the Reporters Com- 
mittee for Freedom of the Press (1974), Times-Picayune Publishing 
Corp. v. Schulingkamv, stay granted, 419 U.S. 1301 (1974), appeal 
dismissed, as moot, 420 U.S. 985' ( 1975) . 

This view may yet receive a sympathetic hearing from the Supreme 
Court. In reversing the contempt conviction in Bridges v. California, 


discussed supra, the Court emphasized the effect of delay in reporting 
the new?. 314 U.S. at 268: 

It must be recognized that public interest is much more likely to be kindled 
by a controversial event of the day than by a generalization, however pene- 
trating, of the historian or scientist. Since they punish utterances made dining 
the pendency of a case, the judgments below therefore produce their restrictive 
results at the precise time when public interest in the matters discussed would 
naturally be at its height. 

Indeed, the Dickinson opinion itself recognized that timeliness of 
publication is the hallmark of '-news." 405 F.2d at 512. 

There have been a number of judicial suggestions that the ''ade- 
quate remedies" exception should be invoked in gag order cases to 
avoid the eifects of the Walker rule. In rejecting a mootness conten- 
tion in United States v. Sehiavo* 504 F.2d 1 (3d Cir.), cert denied, 
41!) U.S. 1006 (1074), the Third Circuit pointed out that "the under- 
lying criminal proceeding would almost always terminate before the 
appellate court hears the case." 504 F.2d at 5. Three of the Circuit's 
judges tool: advantage of the occasion to note in their concurring* 
opinion. 504 F.2d at 10-11 : 

It can be argued that "adequate and effective" appellate remedies are fre- 
quently lacking when silence orders are issued during the course of a criminal 

The facts of this case offer an illustrative situation. The district court Issued 
its oral order at 2:00 P.M. on Friday afternoon and denied the motion to vacate 
about two hours later. Representatives of the media immediately filed notice 
of appeal. Both in the district court and here they moved for a stay. The dis- 
trict court denied the request and this Court did not grant a stay until the 
following Wednesday, five days later. On that same day, the jury returned its 
verdict . . . 

Despite vigorous pursuit of their appeal and prompt action by this Court, 
they were unable to press their objections to the order until the practical effect 
of success on appeal, at least in this case, had become insubstantial. To put 
litigants in appellants' position to the choice of obeying an order and awaiting 
appellate action while their alleged civil rights continue to be infringed, or of 
disobeying the order and then facing certain contempt convictions, makes any 
Subsequent victory on appeal Pyrrhic indeed. 

Some state courts have availed themselves of the other possible 
exception arguably left open by United Mine Workt r& and Walki 
permitting collateral attack on gag orders on (he ground that they 
are "transparently invalid" or have "onlv a frivolous nretense to 
validity." Walker v. Birmingham, 388 fig. a! 315. In State v. 
Sperry, 7<> Wash.2d 69, [SB P.2d COS. cert. <h nh <K 404 U.S. 0?,9 (1071 ), 
the court held the Walker rule inapposite on the ground that "a void 
order or decree, as distinguished from one that is merely erroneous^ 
may be attacked in a collateral proceeding. . . . The violation of an 
order patently in excess of the jurisdiction of the issuing court can- 
not produce a valid judgment." See also Younger v. Smith, 30 Cal. 
A|>i>.:*>d 138, lot; Cal. Rptr. 225 (107:}): Wood v. Good son, 253 Ark. 
196. L85S.W.2d213 fl972). 

Given thai the UAfW-walker rule was reaffirmed in Walker by a 
hare 5-4 majority, that it^ application to silence orders may involve 
problems not fully considered by the Supreme Court in previous cases, 
and thai only one federal court of appeals has ruled on the subject, 
not likely tliat the final word has hern said "!i whether the con- 
tempt power can he used to punish <]>ose who violate an Invalid court 



1. Rights of Those Directly Restrained 

A number of Supreme Court decisions have required that strict 
procedural safeguards accompany any prior restraint on expression. 20 
The Reporters Committee for Freedom of the Press has argued 
strongly that these decisions mandate notice and an adversary hearing- 
prior to issuance of judicial restrictive orders. 27 

In Freedman v. Maryland, 380 U.S. 51 (1965), the Supreme Court 
held that a statute requiring that movies be submitted to the State 
Board of Censors prior to exhibition was "an invalid previous re- 
straint" because there was no provision requiring judicial participa- 
tion in the censorship procedure or even assuring prompt judicial re- 
view. The Court announced. 380 U.S. at 58 (emphasis added) : 

The teaching of our cases is that, because only a judicial determination in an 
adversary proceeding ensures the necessary sensitivity to freedom of expression, 
only a procedure requiring a judicial determination suffices to impose a valid 
final restraint. 

Three years later, in Carroll v. President and Commissioners of 
Princess Anne, 393 U.S. 175 (1968), the Court set aside an order re- 
straining a white supremacist group from holding rallies for ten days. 
Declining to consider whether the circumstances justified an injunction 
against the rallies, the Court held, 393 U.S. at 180: 

The 10-day order here must be set aside because of a basic infirmity in the 
procedure by which it was obtained. It was issued ex parte, without notice to 
petitioners and without any effort, however informal, to invite or permit their 
participation in the proceedings. There is a place in our jurisprudence for ex 
parte issuance, without notice, of temporary restraining orders of short duration : 
but there is no place within the area of basic freedoms guaranteed by the First 
Amendment for such orders where no showing is made that it is impossible to 
serve or to notify the opposing parties and to give them an opportunity to 

The Court went on to note that "the reasons for insisting upon an 
opportunity for hearing and notice" were even more compelling there 
than in earlier cases involving obscenity because "the present case in- 
volves a rally and 'political speech' in which the element of timeliness 
may be important." 393 U.S. at 182. 

Neither the Supreme Court nor any federal court of appeals has 
yet ruled directly on the applicability of "First Amendment due 
process" requirements to <rag order cases. In United States v. Schiavo, 
504 F.2d 1 (3d Cir.). cert, denied, 419 U.S. 1096 (1974), however, the 
Third Circuit, sitting en banc, invoked its supervisory poivers to void 
a restraining order against the media on procedural grounds. The court 
held that such an order must be preceded by "a prompt hearing after 
notice to the involved members of the press and parties," 504 F.2d at 8, 
and that both the order and the reasons for it must be reduced to writ- 
ing. 504 F. 2d at 7-8. While declining to place the holding on constitu- 
tional grounds, the court noted that such procedural requirements were 

sa spp crenerally Henry I\ Monasrhan, "First Amendment 'Due Process'," S3 Harv. L. Rev. 
518 H970). 

27 See Jack Landau. "The Courts and the News Media: Fair Trial-Free Press: A Com- 
promise Proposal for Procedural Due Process on Judicial Restrictive Orders" (Reoorters 
Committee for Freedom of the Press, 1074) ; see also Briefs of the Reporters Committee 
as Amid Curiae in Times-Picayune', supra, and GBB v. Young, *vpra. 

78-342—76 6 


"particularly necessary in a case . . . where the . . . order affects the 
First Amendment rights of the press." 504 F.2d at 8. Three concurring 
judges argued that the court should not have relied on its supervisory 
powers since "First Amendment considerations do, in fact, dictate 
procedural requirements like those set forth by the majority." 504 F.2d 
at 12. 

Despite the force of these arguments, opportunities for notice and 
hearing have rare!}' been accorded members of the press prior to the 
issuance of gag orders against them : 

[T]be courts have rather uniformly treated any kind of restrictive order 
preventing disclosure and publication of information as outside of the procedural 
requirements applicable generally to the issuance of restraining orders and in- 
junctions. MaDy restrictive orders across the country, in both state and federal 
courts, have been entered without notice and without hearing. In some instances, 
these orders have been issued on the eve of trials, or invoked orally during the 
trial. Generally no one has appeared before the court to assert the free press 
right in the First Amendment. This results in orders being entered without a full 
exploration and understanding of the delicate balance between the constitutional 
requirements for a fair trial, a public trial, and a free press. [American Bar As- 
sociation Legal Advisory Committee on Fair Trial and Free Press. Revised Draft: 
Recommended Court Procedure to Accommodate Rights of Fair Trial and Frei 
Pre« (1975), p. 2] 

The arguments relied upon by the Supreme Court in the "First 
Amendment due process" cases seem particularly applicable to judicial 
gag orders. They are final orders restricting expression regarding mat- 
ters of pressing concern "in which the element of timeliness may be 
important" (cf. Carroll, supra, 393 U.S. at 182) . Moreover the need for 
procedural safeguards is especially great where parties subject to the 
restraint may have difficulty in obtaining ell'ective appellate review. 
Nevertheless, whether the Constitution requires such safeguards is like- 
ly to remain controversial until the Supreme Court sheds light on the 

2. Rig Jits of those indirectly affected 

A still more difficult question is posed when the press seeks to require 
that it be accorded notice and a hearing prior to the imposition of 
orders restraining trial participants. Clearh T , an order gagging trial 
paticipants will adversely affect the press's ability to gather and report 
the news. And arguably, the press is entitled to such procedural pro- 
tections since it has a right to listen to those who seek to speak and 
since this right is infringed by restrictions on the speaker. 

The only federal appellate court to rule on this point has concluded 
otherwise.' In CBS v. Fotmg, 522 F.lM 234 ( Cir. 107;")), the Sixth 

Circuit explicitly rejected a proposed ride requiring notice and a hear- 
ing for the press prior to imposition of orders inhibiting their access 

to trial participants. The COUrl deemed the proposal unrealistic and 
-aid it had been unable to find any authority to support it. 522 F.iM 
at 241 n.2. 

III. Proposals \m> Reports 


In L965, Senator Wayne Morse (D-Ore.) and others introduced S. 

290, entitled. "A hill to protect the Integrity of the court and jury 

functions in criminal cases.' 1 This bill, which had been introduced 


in the 88th Congress as S. 1802, would have made it a contempt of 
court for any federal employee, defendant, or attorney to "make 
available for publication information not already properly filed with 
the court which might affect the outcome of any pending criminal 
litigation, except evidence that has already been admitted at the 

S. 290 was endorsed in 1964 by the U.S. Judicial Conference. An- 
nual Report of Judicial Conference (1964), pp. 84-85. This endorse- 
ment has since been modified, however, by the issuance of the 
Conference's own report (discussed infra), which seemed explicitly 
to disavow advocacy of restraints on defendants such as those of 
S. 290. 1 

Four days of joint hearings were held by the Senate Judiciary 
Committee's Subcommittee on Constitutional Rights and Subcom- 
mittee on Improvements in Judicial Machinery. Hearings Before the 
Subcommittee on Constitutional Rights and the Subcommittee on Im- 
provements in Judicial Machinery of the Committee on the Judiciary. 
89th Cong., 1st Sess. (August 17-20, 196.")). Xo further action was 
taken on the bill. 


J. The American Bar Association 

In 1966, the American Bar Association's Advisory Committee oh 
Fair Trial and Free Press, headed by Justice Paul C. Reardon, with 
David L. Shapiro as reporter, issued what remains the most thoughtful 
and comprehensive report on fair trial-free expression problems. The 
pioneering report and its recommendations, relating only to criminal 
trials, were adopted with minor modifications by the ABA House of 
Delegates in 1968. American Bar Association Project on Standards for 
Criminal Justice, Standards Relating to Fair trial and Free Press 
(1968) [hereinafter cited as Reardon Report]. It is "must" reading 
for anyone studying the fair trial-free expression issue. 

a. Direct Restraints on the Press 

The Reardon Committee emphatically rejected the suggestion that 
courts should increase the use of their contempt power against the 
press. It noted, first, that the British experience suggested "that the 
exercise of such power by judges may serve to stifle desirable public 
discussions of issues and to diminish the crusading zeal of the 
press . . . [possibly leading to] a greater reluctance to expose crime, 
or corruption in public places, or to engage in constructive criticism 
of the conduct of judicial proceedings." Reardon Report, p. 70: ibid, 
n. 195. Moreover, the Committee concluded, expanded use of the con- 
tempt power against the press might impair the benefits derived from 
informing the public and from a full discussion of issues of public 
importance, and would pose serious constitutional problems. 

Despite these reservations, the Committee did recommend use of 
the contempt power in two situations: (1) when, knowing that a 
jury is being selected for a criminal trial or that a criminal trial 
by jury is in progress, and with the intent of affecting the trial's 
outcome, someone disseminates a statement going beyond the public 

M5 F.R.D. 391, 407 (19C9). 


record of the court ami in fact presenting a clear and present dan- 
ger of prejudice to the proceedings; and (2) when anyone (including 
the press) violates a valid order not to disseminate information re- 
ferred to in a hearing which has been closed to the press and the 
public in order to prevent disclosure of possibly prejudicial material. 
Report, pp. 13-14, Recommendation i.l (Approved Draft), 
27, 1 

The Committee pointed out that its contempt recommendation is 
narrower than the constitutional power of the courts in that it does 
not "reach pretrial statements even when they pose a clear and pres- 
langer to the fairness of the ultimate trial.*' Reardon Report, 
p. '21 (Approved Draft). The Report does not explicitly provide that 
orders restricting the dissemination of information referred to in a 
closed hearing may be issued only upon a showing that such dis- 
semination poses a clear and present danger. However, in the context 
of its explicit recognition that the Supreme Court's decisions indi- 
cate use of the contempt power against the media is "limited by the 
requi] of the 'clear and present danger' test. v id., p. TO. it 

seems fair to conclude that this standard was intended to be subsumed 
under the requirement that an order, to be enforceable, must bo 

More recently, the Reardon Committee's successor, the ABA Legal 
Advisory Committee on Fair Trial and Free Press, has focused much 
of its attention on obtaining voluntary agreements in each state 
between the bar and the press. These agreements vary, but the Coin- 
mittee's composite "distillation" of agreements entered into in ap- 
proximately half the states reads in part as follows: 

All concerned should l>e aware of the dangers of prejudice in making pie- 
trial disclosures of the following types of information, which lawyers for the 
prosecution or defense are forhidden by the Code of Professional Responsibility 
from releasing publicly. 

(a) opinions about an accused's character, guilt or Innocence; 

(l)i admissions, confessions or the contents of a statement attributed to the 
accused, except that a Lawyer may announce that the accused denies the charges 
against him ; 

(c) references to the results of any examinations or tests . . .: 

Cd) statements concerning the credibility or anticipated testimony v\ prospec- 
tive v. itrx [ 

opinions concerning evidence or argument in tie case; 

(f) prior criminal charges and convictions, although they usually are mutters 
of public v<'',v(}. (Their publication may be especially prejudicial Immediately 
preceding trial.) 

."». When :i trial has begun, the news media generally may report anything 

done or s;iid in open court They should consider very carefully, however, publi- 
cation "f any mutter or statement excluded from evidence outside the presence 
of the jury, ti i- type of Information may be highly prejudicial, and if it reaches 

the jury could result in a mistrial. This precaution is especially important in 
Instances when the jury has not been sequestered for the duration of the trial. 
[The American Bai i Advisory Committee on Fair Trial and 

Fiee Press, Fair Trial in. Press Voluntary Agreements M!)7li. p. s. | 

h. Restraints on Trial Participants 
Notwithstanding it- recommendation that tlio contempt power be 
it-"-! us a direct restraint on the press under certain very limited 
circumstances, the report emphasized that the heart of the solution 
lies in controlling the release of information, primarily by attorneys, 
law enforcement officers, and judicial employees, and in introducing 
additional safeguards into the conduct of judicial proceedings. 


(1) Restrictions on Attorneys. — In approving the report, the Bar 
Association voted to incorporate into the Code of Professional Re- 
sponsibility new provisions (EC 7-33 and DR 7-107) based on the 
notion that it 

Is the duty of the lawyer not to release . . . information or opinion for dis- 
semination by any means of public communication, in connection with pending 
or imminent criminal litigation ... if there is a reasonable likelihood that such 
dssemination will interfere with a fair trial or otherwise prejudce the due 
administration of justice. \ Reardon Report, p. 1, Recommendation 1.1 (Approved 
Draft) (emphasis added).] 

Violation of these provisions is punishable by professional discipline 
ranging from reprimand through suspension to disbarment. Id., pp. 3, 
4. During the course of a pending criminal investigation, attorneys are 
to refrain from making any extrajudicial public statements going 
beyond the public record unless they are necessary for narrowly 
limited reasons specified by the Standards {Void.) and by DR 
7-107 (A). 

From arrest until the beginning of the trial, neither the defense 
counsel nor the prosecuting attorney are to release statements con- 
cerning: "(1) the prior criminal record . . .. character or reputation 
of the accused, . . .: (2) ... any confession, admission or statement 
given by the accused, or the refusal ... to make any statement; (3) 
the performance of . . . [or refusal to submit to] any examinations 
or tests . . . ; (4) the identity, testimony, or credibility of prospective 
witnesses . . .; (5) the possibility of a plea of guilty . . .: (6) any 
opinion as to the accused's guilt ... or as to the merits of the evidence 
in the case." Reardon Report, p. 2. Recommendation 1.1 (Approved 
Draft), DR 7-107 (B). 

While the trial or jury selection is in progress, neither the prosecu- 
tor nor the defense attorney is to "give or authorize any extrajudicial 
statement . . . relating to the trial or the parties or issues in the trial.'' 
Id., p. 3, Recommendation 1.1 (Approved Draft), DR 7-107 (D). 
Finally, prior to sentencing, neither lawj^er is to make or authorize 
any extrajudicial public statement "if there is a reasonable likelihood 
that such dissemination will affect the imposition of sentence." Ibid, 

The Report concluded that such restrictions on attorneys posed no 
constitutional problems since lawyers "have a fiduciary obligation to 
the courts and are subject to appropriate discipline", and since 

(1) the restrictions are limited as to time ... [of application] ; (2) ... 
[those governing] pretrial statements relate to specific matters whose disclosure 
poses a significant threat to the fairness of the ultimate trial ; (3) ... [they] are 
applicable only to those attorneys participating in the investigation, prosecution, 
or defense of a criminal case. [In addition] the recommendations contain several 
provisions designed to make it clear that certain kinds of statements may 
properly be made because the need to inform the public or to aid in the investiga- 
tion, prosecution, or defense outweighs any hazard that the statement may 
present. Id., p. 82. 

The Reardon Report itself did not consider civil cases and specifi- 
cally limited its recommendations to criminal proceedings.- 

Xevertheless, when the drafters of the ABA's Code of Professional 
Responsibility met to incorporate the Reardon Report's recommenda- 

2 The Committee concluded that civil litigation fell outside the scope of its assignment. 
Reardon Report, p. 84. 


tions into the new Code, they decided that similar restrictions ought 
to apply to attorneys in civil cases. Their consideration on that point 
had the benefit of neither working papers nor detailed discussion: it 
simply seemed logical to them that lawyers should be bound by the 
same ethical standards regardless of the nature of the case. 3 

( -1 ) Restrictions on Lou: Enforcement Officers. — The Eeardon Re- 
port urged law enforcement agencies to adopt internal regulations 
imposing restrictions on release of information by its officers similar 
to those suggested for attorneys. In the event that such regulations 
were not adopted and enforced by a particular agency, the report 
recommended that they be implemented by legislation or rule of court, 
with appropriate sanctions. Reardon Report, pp. -i-6. Recommenda- 
tion '2 (Approved Draft). Constitutional objections to these restric- 
tions were rejected on the ground that "law enforcement officers are 
servants of government and, like lawyers, have a fiduciary obligation 
to maintain the integrity of the criminal process/' Id., p. 99. Despite 
the absence of explicit language limiting the application of these 
guidelines to those officers connected in their official capacities with 
the case commented upon, it seems fair to assume that such a limita- 
tion was intended. Any broader restriction, at least if imposed by court 
order, would be difficult to square with the Court's holding in Wood v. 
(,, orgia, 370 U.S. 375 (1962), discussed su pra. 

(3) Restrictions on Judicial Employee*. — The courts were urged 
to adopt rules proscribing the disclosure by judicial employees of 
information relating to a pending criminal case that is not part of the 
public record and that might "tend to interfere with the right of the 
peoph oi of the defendant to a fair trial." Reardon Report, p. 6. 
Recommendation ii..'> (Approved Draft) (emphasis added). Whenever 
appropriate in light of the issues or notoriety of the case, they may 
also be specially directed to refrain from making extrajudicial state- 
ments regarding the case. 

(4) Restrict '/(j us on Parties^ Witnesses, and Jurors. — The Commit- 
oncluded that a general rule forbidding extrajudicial statements 

by parties, witnesses, and jurors was unnecessary and of questionable 
constitutionality. Reardon Report, p. 142. Nevertheless, it did recom- 
mend that, "whenever appropriate in light of the • • • notoriety of 
the case," during the course of an ongoing trial the court should in- 
struct parties, witnesses, and jurors, as well as court employees, not 
to make any ext ra judicial statements about the case. Id. p. 1 1, ReCQjn- 
jiiendat ion 3.5(c) ( Approved I )ra (t ) . The indical ion in Shi ppard t hat 

"j he t rial court might well have proscribed exl injudicial statement- by 

any lawyer, party, witness or court official which divulged prejudicial 

matters" (384 U.S. at 361) was cited to justify this proposal. Id., p. 
1 \ : 2. Lacking further explanation, the implication is that the First 

Amendment rights abridged are outweighed by the requirements of 

a fail- trial. 

c. Restrictions on . I cot ss to Judicial Pi <>< < < dings 

The ( lommittee concluded I hat the defendant's right to a fair < rial 
was clearly paramount to any public trial right which might argu- 
ably belong to the public. It therefore recommended that a defendant's 
motion to exclude the press and public from any pretrial hearing be 

'Telephone Conreraatlon witli Prof. John Button, Reporter, ABA Special Committee on 
Eralnatlon of Ethical Standard! (1976). 


granted unless "there is no substantial likelihood" that prejudice will 
result from disclosure at the hearing of evidence or argument which 
will be inadmissible at trial. Reardon Report, rj. 7, Recommendation 
3.1 (Approved Draft). The same standard applies to motions to close 
any portion of the trial which takes place outside the presence of the 
jury, unless the jury has been sequestered. Id., p. 11, Recommendation 
3.5(d) (Approved Draft). With the consent of the defendant, the 
court may take such action sua sponte or at the request of the prosecu- 
tion. A complete record of closed proceedings is to be made available 
after the case is discharged. Id., pp. 7, 11, 12. 

Despite these recommendations, the Report observed that closing 
proceedings is only a limited solution to the publicity problem, since 
it entails a waiver by defendants of the constitutional right to a public 
trial and cannot prevent disclosures from other sources. Id., p. 75. 

d. Use of Traditional Techniques to Insure Juror Impartiality 
Courts have traditionally relied on a wide-ranging arsenal of tech- 
niques — not requiring restrictions on expression or access to informa- 
tion — to insure juror impartiality. While finding these techniques 
inadequate concurrently to assure a fair trial and to preserve fully the 
other rights of the defendant and public, the Committee concluded 
that their potential eifectiveness was often frustrated because of the 
trial courts' reluctance to grant relief. Accordingly, it recommended 
new methods and new standards for use of traditional remedies. 

(1) Change of Venue or Continuance. — Although a change of venue 
may require that the defendant forgo the right to a trial in the venue 
where the crime was alleged to have been committed and a continuance 
may impinge on his interest in a speedy trial, the Committee found 
that these devices could be of considerable value in insuring an im- 
partial jury. Despite some cases in which they might be blunted by 
renewed or extremely widespread publicity, its research demonstrated 
that changes of venue or continuance could often be quite effective. 
Trial judges did not take full advantage of these remedies, however, 
perhaps because they were anxious to avoid delay and additional ex- 
pense and were inherently unwilling to concede that their court could 
not provide an impartial forum. Reardon Report, p. 121. 4 

To alleviate this problem, the ABA recommended a new standard, 
based upon language in the Sheppard case, to make it easier for the 
defendant to obtain relief : 

A motion for change of venue or continuance shall be granted whenever 
it is determined that because of the dissemination of potentially prejudicial 
material, there is a reasonable likelihood that in the absence of such relief, a fair 
trial cannot be had. Reardon Report, p. 8, Recommendation 3.2(c) (Approved 
Draft) (emphasis added). 

The recommendation also provided for liberalized methods of proof, 
including particularly the use of opinion surveys to establish the exist- 
ence of prejudice in the venue. Id., Recommendation 3.2(b) . Although 
such surveys had seldom been admittted in that context and some 
courts had excluded them on hearsay or unreliability grounds, the 
ABA concluded that their use should be permitted. Id., p. 125. 

(2) Selection of the Jury. — The practice most frequently used to 
assure selection of a jury unprejudiced by pretrial publicity is the voir 

*#ee also Arthur D. Austin, "Prejudice and Change of Venue" 6S Dick. L. Rev. 401, 40S 


dire examination of the venire. The Committee expressed severe res- 
ervations about the effectiveness of this procedure. It relied heavily 
upon a study which concluded that "jurors often, either consciously 
or unconsciously, lie on voir dire,'' shaping their answers to further 
their interest in being included in or excluded from the jury. 5 More- 
over, the Committee was concerned that exposure to pretrial publicity 
may have a substantial, subconscious effect, even though the jurors 
believe they are unaffected by ii . Reardan Rt port, pp. 55-56, 01. 

Nevertheless, its surveys indicated that members of the bench and 
bar considered the procedure to be relatively effective in those locali- 
ties where the examination of each prospective juror took place out 
of the presence of others. Id., Appendix A, pp. 186-187. Therefore, in 
addition to outlining the factors which should be weighed in consider- 
ing whether a prospective juror is sufficiently impartial to serve, the 
Committee recommended that whenever there is a "significant possi- 
bility" that some member of the venire will be ineligible because of 
exposure to prejudicial material, the examination of each juror should 
take place outside the presence of the others. Id., p. 9, Recommenda- 
tion 3.4 (Approved Draft). 

One method which has sometimes been used to avoid the effects of 
pretrial publicity is to call jurors from other localities within the dis- 
trict. While noting that this would normally be less effective than a 
change of venue since jurors would be exposed to publicity once they 
entered the district, the Committee recommended that courts be given 
the authority to draw jurors from other localities in the state or fed- 
eral district "whenever it is determined that potentially prejudicial 
news roverage of a given criminal matter has been intense and has 
been concentrated primarily in a given locality. . . ." Id., p. 10, Kecom- 
mendation 3.4(c) (Approved Draft); id., pp. 137-38. 

(3) Waiver of Jury Trial. — While noting that waiver of a jury trial 
is an inadequate solution to the problems of prejudice since it forces 
the defendant to choose between two constitutional rights, the ABA 
recommended that it should be permitted whenever (1) it is know- 
ingly and voluntarily made, and (2) it is reasonable for the defendant 
to conclude that because of dissemination of prejudicial material a 
t rial without a jury is likely to be more fair than a jury trial. Rear don 
Report, p. 1), Recommendation 3.3 (Approved Draft) ; id.) p. 130. 

(4) Sequestration of the Jury. — The standards provide that seques- 
tration ".-hall be ordered" if it is likely that highly prejudicial matters 

will otherwise come to (he attention ol the jurors. Reardon Import. 
p. 11. Recommendation 3.5(b) (Approved Draft). In order to mini- 
mize prejudice which may result from juror resentment, jurors arc 
not to be told who requested sequestration. The standard requiring 
a likelihood that highly prejudicial matters will reach the jury stands 
iu sharp contrast to the much less demanding standard for closing 

proceeding- and the complete lack of a standard for restricting state- 
ments by attorneys, law enforcement officers, and judicial employees. 
The more stringent requirements reflect the Committee's recognition 
that sequestration is expensive for the state and inconvenient for the 
jurors and may, despite the court's precautions, lead to juror prej- 
udice against the party suspected of requesting sequestration. The 

i \v Broader "Voir Dire Examinations: An Empirical Study," 89 8o. Oal /• Rev 


Committee also noted that sequestration could not help to selve the 
problems caused by pretrial publicity. Id., p. 142. 

(5) Cautioning Jurors. — The Committee suggested a model admoni- 
tion to the jury proscribing exposure to out-of-court reports concern- 
ing the proceedings. Rear don Report, p. 12, Recommendation 3.5(e) 
(Approved Draft). Although its surveys indicated that about 90% 
of the total sample of defense attorneys and over 40% of judges having 
definite opinions thought such warnings were ineffective, id.. Ap- 
pendix A, p. 189, the Committee concluded that a "properly framed 
admonition is likely to be helpful," id., p. 145. 

(6) Examining Jurors During Trial. — 

When material has been disseminated which goes beyond the record on which 
the case is to be submitted to the jury and raises serious questions of possible 
prejudice, the court may on its own motion or shall on motion of either party 
question each juror, out of the presence of the others, about his exposure to that 
material. The examination shall take place in the presence of counsel, and an 
accurate record . . . shall be kept. {Rear don Report, p. 13, Recommendation 3.5 
(f) (Approved Draft).] 

(7) Setting Aside the Verdict. — When the judge discovers after 
submission of the verdict that, despite precautions, there is a substan- 
tial likelihood that the vote of one or more jurors was influenced by ex- 
trajudicial information not part of the court record, the verdict is to 
be set aside and a new trial granted. Reardon Report, p. 13, Recom- 
mendation 3.6 (Approved Draft) . 

e. Procedure for Issuing Restrictive Orders 
As noted earlier, the Reporters Committee for Freedom of the Press 
has urged that the press be accorded the right to notice and a hearing 
before the issuance of any order restraining publication or release of 
information to the press. 6 The ABA's Legal Advisory Committee on 
Fair Trial and Free Press 7 considered the Reporters Committee pro- 
posal, modified it, and submitted its altered version to the ABA House 
of Delegates, which at its August 1976 meeting approved the commit- 
tee's recommendations. American Bar Association, Summary of 
Action of the House of Delegates, 197G Annual Meeting (Aug. 1976), 
p. 9. 

The ABA Committee concluded that restrictive orders should be 
issued only as a last resort : 

It is clear that the free flow of information concerning court business is im- 
portant not only to the requirements of a free press and a fair and public trial, 
but to greater public understanding of the judicial function and the rule of law 
in our society. . . . [Attention is called to the many methods for protecting a 
trial from the effects of prejudicial publicity outlined by Mr. Justice Clark in 
Sheppard v. Maxwell, 384 U.S. 333 (1966) .... The Committee regards such 
alternatives as preferable to the use of judicial restrictive orders. [Revised 
Draft: Recommended Court Procedures To Accommodate Rights of Fair Trial 
and Free Press (1975), p. 7.] 

The ABA Committee's draft adopts the Reporters Committee pro- 
posal that general policies of the courts which are intended to restrict 
prejudicial publicity should be adopted as Standing Guidelines, rather 
than Standing Orders. 8 These Guidelines would not be enforceable by 
contempt, but other sanctions for violations would still be available 

6 Jack Landau, The Courts and the News Media: Fair Trial-Free Press: A Compromise 
Proposal for Procedural Due Process on Judicial Restrictive Orders (Reporters Committee 
for Freedom of the Press, 1974). 

T Currently chaired by Judge Paul H. Roney of the Fifth Circuit of Appeals. 

8 Revised Draft, p. 5. 


against lawyers (disbarment or ethics committee censure), court offi- 
cials (discharge), and police (disciplinary action by civil service com- 
missions and police review boards, or internal discipline within the po- 
lice department). Revised Draft: Recommended Court Procedure To 
Accommodate Rights of Fair Tibial and Free Press (1975), p. 6. 
Special orders, ''tailored to the particular circumstances of the case," 
and punishable by contempt, "would be reserved for specific cases in 
which . . . prejudicial publicity poses such a substantial threat to a 
fair trial as w T ould justify use of the court's contempt power," and 
in which other procedures for assuring a fair trial are inadequate. 9 
The Committee explained : 

First, experience has shown that standing orders of general application are 
largely ignored in cases of little public interest. When the sensational trial ap- 
pears, there is general confusion as to whether the standing order will be en- 
forced, and what parts of such order apply to the particular case. With a Special 
Order tailored to specific circumstances, this potential area of misunderstand- 
ing and conflict would be eliminated. In the meantime, the Standing Guidelines 
would serve to establish the normal standards of conduct. Second, developing 
a Special Order tailored to a single case would afford the court the opportunity 
to best resolve any fair trial-free press conflict that might arise. 10 

( )nc might wonder whether there is an arguable conflict between the 
Committee's conclusion, on the one hand, that restrictions on speech 
should be countenanced only in those exceptional cases where all other 
procedures are inadequate for dealing with a very substantial threat 
to the fairness of a trial, and, on the other, its proposal that standing 
guidelines applicable to all cases should be enforceable by profes- 
sional sanctions. 

Under the Committee's proposal, all affected parties and the gen- 
oral public must be given notice of proposed standing guidelines and 
provided with an opportunity to present arguments for change. After 
soliciting written comments and scheduling meetings with interested 
persons, the court adopts and distributes widely a set of tentative 
guidelines. Anyone who objects to these guidelines is to be given an 
opportunity for a hearing. Following such a hearing, the court adopts 
final guidelines stating the reasons for their adoption, with particular 
explanations regarding controversial provisions. Finally, some method 
of appellate review is to be afforded any interested persons, without 
reference to a specific case. Id., pp. 9-10. 

A Bimilar procedure is recommended for promulgation of Special 
Orders, rims, notice is to be given in a manner set forth in the Stand- 
ing Guidelines; written comments received; "objections . . . heard 
at a formal or evidentiary hearing, depending upon the circumstances 
and within the discretion of the court"; the order specific in its terms, 
Betting forth the reasons for issuance; and appellate review "in the 
most expeditious manner provided by the . . . jurisdiction for re- 
view of temporary injunction orders or any other orders which are 
subject to expedited review" accorded anyone "aggrieved by i lie Special 
Order." /&, pp. 10-11. 

/. Summary of //"AHA Position 
The ReardoD Report rejected any direct restraints on the presses 
ripht to report what transpires in open court but explicitly approved 
direct prior restraints <>n reporting of events which take place in 

• n, <i 
■ i'i . pp. 


proceedings closed to the press and the public. It also recommended 
standing restraints, applicable to all cases, on the release of informa- 
tion by attorneys, law enforcement officers, and judicial employees. 
While rejecting standing restrictions on other trial participants, it 
suggested that in notorious cases the court should instruct parties, 
witnesses, jurors, and judicial employees not to make extrajudicial, 
public statements about the case. It provided that a defendant's motion 
to close pretrial and other proceedings taking place out of the presence 
of the jury should be granted unless there is no substantial likelihood 
that prejudice may otherwise result from disclosure of information 
inadmissible at trial. Finally, it recommended more liberal use of 
traditional means of assuring jurors' impartiality. 

The Legal Advisory Committee on Fair Trial-Free Press has con- 
cluded that restraints on extrajudicial speech should not be imposed 
unless all other available procedures prove inadequate to protect 
against a very substantial threat to the fairness of a trial. Neverthe- 
less, the Committee has recommended the adoption of standing guide- 
lines to restrict such extrajudicial statements. These guidelines would 
be applicable to all cases, regardless of whether any threat of prejudice 
existed, and would be enforceable by professional sanction. 

Despite this arguable inconsistency, the Committee has performed 
a valuable service in recommending: (1) that contempt power be 
available only to enforce Special Orders issued in sensational cases; 
(2) that neither Special Orders nor more general Standing Guidelines 
be issued except after adequate notice and opportunity for comment 
and hearing ; (3) that such Guidelines or Orders be in writing and ac- 
companied by a statement of the reasons for their adoption; (4) that 
all interested persons be accorded an avenue to appeal Standing 
Guidelines, without regard to a particular case; and (5) that all ag- 
grieved parties be accorded the right to expedited appellate review of 
Special Orders. 

2. Association of the Bar of the City of New York 

Shortly after the appearance of the Tentative Draft of the Reardon 
Report, a committee of the Association of the Bar of the City of New 
York, chaired by U.S. Circuit Judge Harold Medina, issued a report 
recommending similar standards for the release of information by 
attorneys and law enforcement agencies, but differing from the ABA 
report in several respects. Special Committee on Radio, Television, 
and the Administration of Justice of the Association of the Bar of the 
City of New York, Freedom of the Press and Fair Trial: Final Re- 
port with Recommendations (New York, 1967) [hereinafter referred 
to as the Medina Report] . 

a. 'Direct Restraints on the Press 
The Medina Report concluded that imposition of direct restraints 
on the press would be unconstitutional and unwise under any circum- 
stances. The "guarantees of the First Amendment," it concluded, "will 
prevent the use of the contempt power [or criminal proceedings] to 
control the news media even where the impartially of a petit jury is 
endangered." Medina Report, p. 6. 

o. Restraints on Trial Participants 
The Medina Committee's recommendations regarding restraints on 
trial participants were, on the whole, more far-reaching than those of 


the Reardon Report. Unlike the Reardon Committee, it drew no dis- 
tinction regarding the severity of appropriate restrictions at various 
stages from the time a judicial proceeding is first ''anticipated'' until 
the time it is concluded. It recommended that broad restrictions be 
imposed on extrajudicial statements by lawyers in all civil as well as 
criminal cases. Moreover, it urged that lawyers be required to attempt 
to restrain their clients and witnesses from making any out-of-court 
statements of the sort proscribed for lawyers. Medina Report, 
pp. 25-2GL With regard to direct restrictions on parties and win- 
it again went beyond the proposals of the Reardon Committee and 
suggested that restrictive orders aimed at particular cases would be 
appropriate in civil as well as in criminal proceedings, Id., pp. r>4-«V>. 
The Medina Committee joined in urging that law enforcement agen- 
adopt broad restrictions on the release of information by their 
officers but concluded that courts have no authority to enforce that 
recommendation except for "particular police officers [who] have had 
such a close and intimate relationship to the trial that they may be 
said to be part of the trial itself.'' Id., p. 57. See also pp. 30-3,>. 59. 

c. Traditional Techniques 

In other areas, the two committees were substantially in agreement. 
The Medina Report declared that effective warnings to jurors are of 
"the utmost importance" and suggested that jurors who disregard 
such warnings should be held in contempt of court. Medina Report, 
pp. 5J-5o. It urged that voir dire examination of the venire in sensa- 
tional cases "be made of each prospective juror separately and not 
in the presence of the other jurors on the panel, . . .'' Id., p. 52. 
And it urged more frequent use of the traditional methods <»!' safe- 
guarding juror impartiality. Id., p. 57. 

.;. United States Judicial Conference 

In 1969, the Judicial Conference of the United States adopted a 
series of fair trial-free expression recommendations contained in the 
report of a committee headed by Judge Irving \{. Kaufman of the 
I U3. Court of Appeals for the Second Circuit. Judicial Conference of 
the United States, Committee on the Operation of the Jury System. 
Report of the Committee on the "Free Press-Fair TriaT' Issue. 45 
F.R.D. 391 (19G9) [hereinafter cited as the Kaufman Report*].™ 
The Judicial Conference is composed of the chief judges of the 11 
( r.S. Courts of Appeals, the chief judge in every federal district court, 
(he chief judge of the Court of Claims, and the chief judge of the 
Court of Customs and Patents. The Report's adoption "virtually 
makes it a direct Lve to t he federal judiciary. '- 

In four areas, the Judicial Conference essentially endorsed the 
jommendations. h adopted verbatim the AHA proposal to 
restrict extrajudicial discussion of pending litigation by attorneys, 
/'/., p. -Mil, noting that the courts "unquestionably . . . have the 
power to regulate t his part icular source of in format ion, and t here now 
seems to he general agreement that they have the duty to do so." id., 
p. |06« Like t\u> A.BA, the Judicial Conference recommended that 

11 Minor amendment! i<> the Kaufman Report's recommendations relating t.> attorneys 
orming to the changes made by the ABA when it Incorporated the Reardon r< 
mendatlons into the Code of Professional Responsibility) are reported at -"'I F.R.D i IB 

i Am. .Tur. "Trial*" Bupp. r,i (1975). 


each U.S. District Court adopt a rule prohibiting courthouse per- 
sonnel from disclosing in a criminal case any information not already 
part of the public record, unless authorized by the court. Id., pp. 
407-08. Also like the ABA, the Judicial Conference called for more 
liberal use of traditional techniques for insuring an impartial jury — 
continuance, change of venue, sequestration of jurors and witnesses, 
A'oir dire, and cautionary instructions to jurors, id., p. 412, but noted 
that these techniques were often insufficient to assure the defendant 
a fair trial, id., p. 413. Finally, it followed the Eeardon Keport in 
suggesting that courts might issue special orders in widely publicized 
cases to deal with matters not adequately covered by their standing 
rules. Such orders might include: (1) "a proscription of extrajudicial 
statement by participants in the trial, including lawyers, parties, wit- 
nesses, jurors, and court officials . . . ;" (2) directions regarding the 
insulation of witnesses from the press; (3) direction that jurors not 
expose themselves to out-of-court reports concerning the case; (4) 
sequestration of the jury; (5) direction that names, addresses, photo- 
graphs, and sketches of jurors not be publicly released. Id., pp. 409-11. 
In other areas, however, the Judicial Conference recommendations 
were more limited than those of the ABA. It explicitly rejected any 
direct restraint on the press, saying that such a curb is "both unwise 
as a matter of policy and poses serious constitutional problems." Id.. 
pp. 401-02. It declined to adopt the ABA recommendations regarding 
the exclusion of press and public from preliminary hearings and 
other hearings held outside the presence of the jury, explaining that 
it preferred to accumulate a body of experience with the other guide- 
lines before deciding on such a recommendation. Id., p. 403. Finally, 
noting that both the ABA and Medina reports had expressed a pref- 
erence for self-imposed restraints by law enforcement agencies over 
judicial imposition of such restraints, it found sufficient progress to 
make unnecessary judicial intervention at that time. Id., p. 403, n.19. 

J h Department of Justice Guidelines 

The Department of Justice has issued guidelines governing the 
release by its personnel of information relating to civil or criminal 
proceedings. "Release of information by personnel of the Department 
of Justice relating to criminal and civil proceedings," 28 CFR 50.2 
(1075). The restrictions are substantially similar to those recom- 
mended by the Reardon. Medina, and Kaufman reports. 

5. The American Newspaper Publishers Association 

ThejVmerican Newspaper Publishers Association issued a report 
in 1967 rejecting not only direct restraints on the press but also any 
restrictions on the source of the news. 13 The Report also voiced doubt's 
regarding the desirability of voluntary agreements between the bench 
and the bar, saying that neither the press nor the bar has the right to 
sit down and bargain away the people's right to know." 

C. The American Civil Liberties Union 

The American Civil Liberties Union has concluded that direct 
sanctions against the press would be unwise and might violate the 

u \m,rj M n Newspaper Pnhli*hers Association, Rnecial Committee on Freo Eton and 
F;ur Trial Free Pre** and Fair Trial (Now York. 1007). pp. 7-fl 
M id., p. 9. . 


First Amendment. 1 " It lias recommended instead that law enforce- 
ment agencies, prosecuting attorney's offices, and the courts adopt 
rules proscribing the release of prejudicial information. 10 Like the 
ABA, New York City Bar, and Judicial Conference recommenda- 
tions, the ACLU standards would apparently apply to any informa- 
tion falling within specified ''potentially prejudicial" categories, with- 
out regard to whether its release actually had a prejudicial effect in 
a particular case. 

Unlike the bar and bench committees, however, the ACLU has 
urged that sanctions not be made applicable to defense counsel, since 
(1) the community is more likely to be biased against the defendant 
than against the prosecutor, (2) statements coming from defense 
counsel do not have as much public credibility or impact as state- 
ments coming from prosecutors or law enforcement officials, and 
(3) the constitutional guarantee of a fair trial is primarily intended 
to serve as a protection for the accused and therefore does not provide 
a basis for restrictions on defense counsel. 17 

In a recent brief, the ACLU suggested that in sensational cases the 
statutory limitations upon the number of peremptory challenges 
allowed the defense may have to yield to the Sixth Amendment 
guarantee of a fail- trial. 1 * After reviewing the range of techniques 
that could be used by the courts without restraining speech and 
arguing that the Constitution does not permit restrictions on speech 
where less intrusive alternatives will sufficiently protect the govern- 
mental interests at stake, the ACLU concluded : 

The "clash" between the values of free press and fair trial perceived by the 
courts below is not real; rarely, if ever, will there be a tension between those 
two ^reat protections sufficient to require one or the other to yield. . . . 1S There 
arc so many alternative methods to ensure impartial jurors short of direct 
r< -r taints on free speech that a case in which the rights of free speech and fair 
trial are actually in conflict may never reach this Court. 20 

7. Twentieth Century Fund Task Force 

On March 15, 1976, the Twentieth Century Fund's Task Force on 
Justice, Publicity and the First Amendment 21 issued a report in 
which it criticized (1) the imposition of direct restraints on publi- 
cation, (2) "excessive use of restrictive orders", (3) "excessive re- 
liance on secrecy", and (!) the lack of an adequate procedure for 
cautions development and effective review of restrictive orders. 88 The 
I Force concluded that fair trial-free press restrictive orders con- 
si if u(<> "a growing threat to freedom of the press." 23 

"American Civil Liberties Union, "Policy #212: Prejudicial Pre-Trlal Publicity, " p. 2. 

J " Id., p. 1. 

" Id., p. 2. 

18 Brief for American Civil Liberties Union, ct al. as Amid Curiae, Nebraska Prt*i I l»0- 
rintifin v. Stuart, miftra. 

la Id. at i 

at J). 22. 

- 1 Members of tbe Task Force were : Abraham S. Goldstein. Chairman, Dean. Yale Lnw 
School; Stephen Burnett. Profeeeoi of Law. University of California nt Berkeley: John R. 

Barfels, Judge, U.S. District Ct. ; Joseph Calilano, Jr., Attorney, Williams, Connolly an. I 

Calif ano: Lenort Carter, Editor and Publisher, Forward 'rimes: Stanley n. Fold, Former 
Chief Judge, Court of Appeals of the Btate of New York ; Nathan Lewin, visiting Professor, 

Harvard Law School; C K. McClatchy, Editor, Sacramento Bee; Michael J. O'Neill. 
executive Editor, New York News; Ahrahain D Rofaer, Professor 01 Law. Columbia I. aw 

School ; Carl stern. Washington Correspondent, NBC News; Tom Wicker. Associate Editor, 

New Fork Times; Alan Barth (Rapporteur), author, formerly editorial writer. Washington 

Judge Bartels dissented from the Report other members dissented from particular 
recommendations or added additional views. 

Ta i Force on Justice Publicity ami the First Amendment, Right* in Conflict (Twen- 
tieth Century Fund: 1076), pp. i [hereinafter cited as Bight* in Conflict}. 

-•" /</., p. 4 (emphasis deleted). 


Task Force members were adamant in their opposition to direct 
restraints on publication either before or during trial, arguing that 
such restraints represented "censorship) of precisely the kind that the 
First Amendment was designed to prohibit.'' 24 

Their opposition to restrictions on release of information to the 
press was more moderate. The report seemed to dismiss in a single 
sentence the possibility that the doctrines of prior restraint and "clear 
and present danger" were fully applicable to such restrictions : 

Trial judges undoubtedly have authority, when the trial situation requires 
it, to issue orders imposing silence on defendants, lawyers, witnesses, court 
employees, law enforcement officers, and others from whom journalists normally 
seek information regarding a criminal proceeding. 125 

Nevertheless, the Task Force did conclude that restraints on extra- 
judicial statements by trial participants were issued far more fre- 
quently than necessary and with inadequate "regard for the public's 
legitimate interest in crime and justice." 26 In order to ameliorate 
this problem, the Task Force proposed a model statute governing 
procedures for formulation and review of such restrictions. 27 The 
proposed legislation, aimed at the states but easily adaptable to the 
federal courts, is quite similar to that proposed by the ABA Legal 
Advisory Committee on Fair Trial-Free Press. There are, however, 
a number of differences. 

First, the Task Force's proposal expressed more concern than the 
ABA's with providing uniformity of rules within a court system, 
and efficiency in formulation and review of those rules. Rather than 
proposing that rules be drawn separately by each court, as did the 
ABA, the Task Force suggests eacli state supreme court appoint a 
committee to prepare standing rules for the entire state. 28 

Second, whereas the ABA proposal left all decision-making regard- 
ing the content of rules in the hands of judges with members of the 
press and the bar contributing primarily through written comments 
and public hearings, the Task Force suggested that bench, bar, and 
press should all be represented on the decision-making committee. 29 
Two members of the Task Force dissented from this recommendation, 
questioning whether the tripartite composition of the committee might 
not compromise the independence of the judiciary or the press, or 
result in vague, compromise rule-making. 30 The Task Force appar- 
ently concluded (though no explanation was offered) that a committee 
on which all concerns are represented would have the ability and 
incentive to engage in a fuller and more balanced consideration of com- 
peting interests. 

Third, while in essential agreement with the ABA regarding pro- 
cedures to provide notice and hearing to all interested persons or 
organizations, the Task Force has defined "interested persons" to 
include only those with a "tangible interest." 31 In context, it is clear 
that the definition is intended to include members of the press, but 
it appears to exclude other members of the public. 82 

"* Id., pp. 15-16 (emphasis deleted). 

25 Id., p. 4. 

26 Id., p. 5. 
"Id., pp. 23-30. 

28 Id., p. 23. 

29 Td., pp. 23-24. 
™Id., pp. 31-32, 37. 
31 Td.. p. 30. 

82 Ibid. 


Fourth, the Task Force decided that given the safeguards entailed 
in having the standard orders prepared by the tripartite committee, 
requiring that they be approved or rejected by the highest state court, 
and making them reviewable prior to enforcement, the orders should 
be enforceable by contempt as well as by professional sanction. 33 

With regard to special orders entered in sensational cases, the Task 
Force's report urged that procedures be adopted to provide for imme- 
diate review and that the underlying proceedings be stayed pending 
an appellate decision on the validity of the order. 34 In the event that 
an order were violated and subsequently found invalid, no penal- 
ties would be imposed. 3 " The Supreme Court decisions holding that 
court orders cannot be collaterally attacked are distinguishable. 
according to the Task Force, in that they were all cases involving 
conduct, rather than pure speech. Moreover, "[f]reedom of the press 
is so important to free government that no single judge should be 
permitted to subordinate it to" his or her unconstitutional directives. 36 

In order to combat excessive judicial secrecy, the report urgently 
recommended development of a "judicial analogue to the Freedom of 
Information Act — a 'sunshine law' opening up aspects of a criminal 
proceeding that too frequently are closed to the press and the public 
and sealed even against subsequent scrutiny." 37 Special concern was 
expressed about the increasingly common practice of sealing infor- 
mation about the identities of jurors. "The public has a substantial 
and appropriate interest in jurors' attitudes, backgrounds and infor- 
mation,'' argued the Task Force, "as well as in knowing what kinds 
of jurors have not been selected." 38 Therefore, this information should 
bo sealed only after a hearing on the matter has been conducted and 
only when necessary to prevent the jury from being threatened, intim- 
idated, or harassed. The desire to prevent the press from interrogating 
jurors was hold not to be a sufficient justification for such action. "" 

The Task Force emphasized that primary reliance should be placed 
on traditional methods of preventing prejudice. It suggested that 
where there has been pervasive publicity, an especially thorough voir 
dire examination should be conducted, with counsel authorized to 
question prospective jurors directly and with the defense permitted 
to exercise more peremptory challenges than in ordinary circum- 
stances.* Finally, the report urged that courts permit an intelligent 
and voluntary waiver of jury trial "whenever they are convinced that 
granting the waiver would result in a trial of greater fairness.''' " 

The Task Force concluded that effective use of voir Jh-r. granting 
of continuances or changes in venue, instructing or sequestering the 
jury, permitting waiver of jury trial, and imposing "reasonable re- 
strictions upon court officers and employe-" will nearly always be 
adequate to insure fair trial. 4 ? On tho e extremely care occasion-"' 
where such measures seem to be inadequate, we would do better to let 

Td . p. 


"• Td. p. 


'■' . p. 


•" fhid. 

'-/. p. 


rd . p. 



40 Td., p. 


M / 


' ' • PP 

. -^ 22, 


a guilty person go free, we are told, than to curtail the freedom of the 

IV. Commentary axd Recommendations 

press. 43 

The hearings held in 1965 by the Subcommittee on Constitutional 
Rights and the Subcommittee on Improvements in Judicial Machinery 
came at the dawn of the era of concern over fair trial-free expression 
problems. Since then, decisions by the Supreme Court and the federal 
courts of appeal have served to clarify the state of the law in some 
areas but have raised new questions about others. Adoption of major 
reports by the bar, bench, press, and others and recent efforts of the 
courts to control prejudicial publicity have provided a firm basis for 
legislative inquiry. The Supreme Court will probably provide useful 
guidance on this issue in deciding Nebraska Press Association v. 
Stuart, No. 75-817 (pending decision at the time of this report's 
submission). 44 

Having laid this groundwork, we may ask: What, if anything, 
should Congress do about the fair trial-free expression controversy? 


1. Commentary 

Does Congress have a role to play in resolving the fair trial -free 
expression problem, or is the solution more appropriately left to the 
Judicial Conference or the courts? The answer must begin with an 
examination of the authority of the legislative and judicial branches 
under the constitutional doctrines of separation of powers and checks 
and balances. 1 

The principle of separation of powers has its roots in Aristotle and 
Locke, but the Constitution was especially influenced by the writings 
of Montesquieu. His Spirit of the Laws provided the framework 
against which the proposed Constitution was measured and frequently 
the means by which it was defended. 2 "Were the power of judging 
joined with the legislative," Montesquieu had written, "the life and 
liberty o.f the subject would be exposed to arbitrary control, for the 
judge would then be the legislator. Were it joined to the executive 
power, the judge might behave with all the violence of an oppressor." 3 
James Madison observed that Montesquieu did not envision an ab- 
solute, inflexible separation of the functions of government. He 
"did not mean that these departments ought to have no partial agency 
in, or no control over the acts of each other." * Indeed, 

[i]t is a paradox of the separation doctrine that some blending of power is 
necessary to effect the checks and balances closely associated with separation. 
As Madison put it, unless the three branches of government "be so far con- 
nected and blended as to give to each a constitutional control over the others, the 
degree of separation which the maxim requires, as essential to a free government, 
can never in practice be maintained." B 

*"' M.. p. 13. 

** For- a sunirpfiry of the CoiTt's decision, see Addendum, hifra p. St. 
1 This discnsslon draws on A. K. Dirk Howard. Commentaries on the Constitution <>f 
Virginia (Chnrtottesvillo 1074). T. 4 >.°.-4r>. 

- Per. e.a.. The Federalist. No. 47 f.T. MadfttTO). 

* Montpsonien. l/Faprit dea lota M74S). Bk. XT oh. C, 

* The Fo-lerpUst. No. 47 (J. Ma*iPOn), 

5 Howard, Commentaries nn the Constitution of Virginia, I. 440. 


The twin doctrines of separation of powers and checks and balances 
are not altogether unlike a gourmet recipe which prescribes the princi- 
pal ingredients and the desired effect, and then says, "season to taste.'' 
We are given some guidance as to the limits of constitutional authority 
of each branch of government, and we are told that we much seek a 
delicate blend of separation and interrelation. After that we must fall 
bank on our judgment to decide what distribution of functions will 
best promote the desired result. 

a. The Authority of Congress 

Whatever the general rule-making authority of Congress, it must 
of course comply with the substantive guarantees of the Constitu- 
tion, as interpreted by the Supreme Court. If the Court concludes that 
restrictions on speech are permissible only upon a showing of a clear 
and present danger to the fairness of a trial, Congress could not 
authorize such restrictions on a lesser showing. 

Less obvious, however, is whether, assuming compliance with other 
substantive requirements of the Constitution, Congress has the consti- 
tutional authority to establish fair trial-free expression rules for the 
federal courts. 

Article III of the Constitution provides that the "judicial Power 
of the United States shall be vested in one supreme Court, and in such 
inferior Courts as Congress may from time to time ordain and estab- 
lish.*' The Supreme Court has consistently held that this language con- 
fers upon Congress broad power to regulate the practices and jurisdic- 
tion of the federal courts. Sibbach v. Wilson t& Co., 812 U.S. 1, 9 
( L941) : Ex part,' Robinson, 86 U.S. (ID Wall.) 505, 510-11 (1ST;]) : 
11. < rs v. Houghton, M U.S. (!) Pet.) 329, 359-60 ( 1835) : Bank of the 
United States v. II at stead. 23 U.S. (10 Wheat.) 51, 53 (1825) ; Way- 
wan v. Southard, 23 U.S. (10 Wheat.) 1, 21-22 (1825). 

At the same time, the Court has held that as soon as they come into 
existence, courts become possessed of certain inherent powers to pro- 
tect the integrity of their processes. Micliaelson v. United States. 266 
U.S. 42, 65 (1924). If the power to protect jurors from prejudicial 
publicity inheres in the very nature of a judicial body, can that power 
be subjected to legislative restriction? If it cannot, any congressional 
efforts to deal with the fair trial-free expression issue might face 
insurmountable constitutional obstacles. See In re Atchison, 284 F. 
604 (S.D. Fla. 1922). In fact, however, such obstacles appear to be 
insubstantial in light of the Supreme Court's consistent decisions 
upholding Congress's right to limit use of one of the most important 
Ol "inherent judicial powers." the power to punish for contempt. 

For example, in Ex part* Robinson, 8G U.S. (19 Wall.) 505, 510 
' L873), the Court emphasized the importance of the contempt power 
but nevertheless sustained legislation which severely Limited the kinds 
of cases in which it could be used, 86 U.S. at 510-1 1 : 

The power has been limited and defined by the act of Congress. . . . 
[\V|hether if ean be held to limit the authority of the Supreme Court, which 
derives its existence and powers from the Constitution, may perhaps he a matter 
of doubt But that it applies to the Circuit and District Courts there can he no 
question. These courts were created hy act of Congress. Their powers and duties 

depend upon the act calling them into existence, or subsequent acts extending 

or limit Ing their jurisdiction. 

Similarly, in Miohaelson v. United States, 266 US. 12 (1924), the 
Court sustained ■ provision of the Clayton Ad of L914, 15U.S.C. §§ 12 


et seq., requiring jury trials in specified kinds of contempt proceed- 
ings. This time, however, the Court's dicta indicated that there were 
limits to the restrictions Congress could place on the courts' powers 
to protect the integrity of their processes. The inherent power to 
punish for contempt, wrote Mr. Justice Sutherland, 266 U.S. at 66, 

is not beyond the authority of Congress [citations omitted] but ... it can 
neither be abrogated nor rendered practically inoperative. That it may be 
regulated within limits not precisely defined may not be doubted. 

This dictum may imply that Congress must leave the courts ade- 
quate measures to insure a fair trial. The concurrent implication is 
that Congress could not decide, as some have suggested it should, 6 
that in those rare cases where restrictions on speech were the only 
measures which could possibly assure a fair trial, society's interest 
would be better served by protecting the freedom of speech and 
freeing the accused. 

The logic of Justice Sutherland's dictum is not unassailable. Con- 
gress can limit the jurisdiction of the inferior federal courts in 
sweeping fashion — even to the point of abolishing those courts alto- 
gether. One could argue that Congress could not be constitutionally 
prohibited from telling courts which are born of its will and exist at 
its pleasure that they may decide only those cases in which they can 
provide a fair trial without impinging on freedom of expression. On 
this reasoning, Justice Sutherland's dictum is not altogether recon- 
cilable with other Supreme Court decisions. The other side of the 
coin, however, is the doctrine of unconstitutional conditions — that even 
if Congress need not act, if it does act (as in creating lower federal 
courts) it must do so in a way that respects the Constitution (e.g., the 
right to a fair trial). As a result, one cannot lightly disregard Suther- 
land's dictum. We must conclude that the law is unsettled, and it is 
conceivable that Congress may be required to leave the courts adequate 
means to assure a fair trial. 

At any rate, it is clear from the cases that even if promulgation 
of court orders or rules intended to insure a fair trial were held to 
fall within the inherent powers of the courts, Congress could still 
regulate those rules, at least so long as it did not destroy the court's 
ability to provide a fair trial. 

^ Congressional restrictions on the courts' use of professional sanc- 
tions against attorneys might at first blush seem to pose a more diffi- 
cult problem. Attorneys are "officers of the court, admitted as such 
by its order." Ex parte Garland, 71 U.S. (4 Wall.) 333, 378 (1866) : 
Ex parte Secombe, 60 U.S. (19 How.) 9 (1856). Moreover, the "power 
to disbar an attorney ... is possessed by all courts which have 
authority to admit attorneys to practice." Ex parte Robinson, 86 U.S. 
(19 Wall.) 512 (1873) (dictum). In Ex parte Secombe, the Court held 
it well settled that, under the common law. "it rests exclusively with 
the court to determine who is qualified to become one of its officers, 
as an attorney and counsellor, and for what cause he ought to be 
removed." 60 U.S. at 13. 

Like other inherent powers, however, the power to discipline at- 
torneys may be regulated by the Congress under Article TTT of the 
Constitution. In Ex parte Garland, ns the Court split 5—4 in striking 
down reconstruction legislation which would have barred anyone 

6 See, e.g., Rights in Conflict, p. 13. 


who had supported the Confederacy from serving as an attorney in 
federal courts, the majority conceded, 71 U.S. at 379-80: 

The legislature may undoubtedly prescribe qualifications for the office, to 
which . . . [attorneys] must conform. . . . The question, in this case, is not 
as to the power of Congress to prescribe qualifications, but whether that power 
has been exercised as a [bill of attainder]. . . . 

The four dissenters insisted that even the punitive statute before 
the Court was a valid exercise of congressional authority. They 
asked, 71 U.S. at 385 (Miller, J., dissenting) : 

Having the power to establish the courts, to provide for and regulate the 
practice in those courts, to create their officers, and prescribe their functions. 
can it be doubted that Congress has the full right to prescribe terms for the 
aduiission, rejection, and expulsion of attorneys. . . . 

Taken together, both opinions portray a court unanimous in its 
conviction that Congress may regulate professional discipline, pro- 
vided that, in the process, it does not violate other constitutional 
guarantees. That view agrees precisely with the consistent theme 
that runs through the inherent powers cases: "What Congress may 
create or destroy, it has broad authority to regulate. 

What then are the restrictions on Congress's power to prescribe 
fair trial-free expression rules for the federal courts? Obviously, 
congressional legislation must be consistent with the substantive re- 
quirements of the Constitution as interpreted by the Supreme Court. 
Beyond that. Justice Sutherland's 19^4 dictum may indicate that 
( 'ongress is required to leave the courts adequate means to assure a fair 
trial. Within these limitations, however, Congress clearly has broad 
power to establish rules for the operation of the federal courts, even 
when its legislation limits inherent judicial powers. 

b. The Role of the C&urts 

Ultimately, it is the Supreme Court's responsibility to determine 
which rules are constitutionally required and which are constitution- 
ally permissible. One way the courts mignt conceivably determine the 
rules applicable to fair trial-free expression problems is through ad- 

Assuming, as this study does, that the Constitution prohibits r ssi Fic- 
tions on speech in the absence of a clear and present danger of preju- 
dice and of a showing that less drastic measures will be insufficient to 
proteel a fair trial, the Supreme Court may ultimately be called upon 
to shoulder the task of establishing a hierarchy of prophylactic meas- 
ures — ranging from the most (b-a-tic to the lea-? drastic. !t mighl do 
this in bread strokes, taking advantage of case- like Nebraska Press 
1 "// v. Stuart 7 to put many of the pieces of that hierarchy 
in their place. s If the Court chooses this route, it may resolve nm-t of 
the important questions in this area in a few cases, and in relatively 
shori order. In that event, there might be little need for Legislation 
of rules, except perhaps to strengthen traditional safeguards and 
improve procedures relat ing to the imposil ion and review of fair trial- 
free expression orders. 

Alternatively, the Court might choose to proceed slowly, estab- 
lishing the scale oi' preferred measures piece by piece, deciding only 

7 Bee Addendum, tnfra p I 

■ i I ' ■ e Itself dealt only with dlrecl restraint! on the press. 


whether the requirements of the Constitution have been met in a par- 
ticular case, and hearing cases only when the most stringent ripeness 
requirements have been^met. If it chooses this course, definitive guid- 
ance may be many years away. 

Moreover, the Court could conclude that the Constitution simply 
does not provide all the answers to the fair trial-free expression ques- 
tions. It could decide, for example, that there is no guide in the Consti- 
tution for determining whether sequestration of jurors is a less drastic 
means than restrictions on speech of counsel. It is even more likely 
that the Court will decline to prescribe the hierarchical ordering of 
the "traditional techniques" 9 for preventing prejudice vls-a-ui* one 

If the Court does choose a go-slow approach or decides that the Con- 
stitution leaves fair trial-free expression questions unanswered, the case 
is stronger for legislative action by Congress or by the courts. Rule- 
making — formulating generally applicable rules outside the context 
of a case or controversy — is the second way in which the courts might 
determine how fair trial-free expression problems are to be resolved. 
There is no question that such rulemaking has a legislative character. 
Xot only does it entail a process very different from adjudication, but 
it explicitly assays to go beyond determination of constitutional or 
statutory imperatives to select from various legally acceptable al- 
ternatives those standards which represent the wisest and most skill- 
ful accommodation of competing values. 

This does not suggest, however, that such guidelines must be, or even 
that they should be, formulated by Congress. Separation of powers is 
not a rigid formula, but a practical principle of statecraft. "While the 
Constitution diffuses power the better to secure liberty, it also contem- 
plates that practice will integrate the dispersed powers into a workable 
government." Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579, 
635 (1952) (Jackson, J., concurring). Those who wrote our Consti- 
tution "saw that a hermetic sealing off of the three branches of Gov- 
ernment from one another would preclude the establishment of a 
Nation capable of governing itself effectively.'' Buckley v. Valeo, 424 
U.S. 1,121 (1976). 

Recognizing that "[legislative bodies have neither the time to in- 
quire objectively into the details of judicial procedure nor the op- 
portunity to determine the necessity for amendment or change," 10 Con- 
gress has delegated substantial rulemaking power to the courts, 28 
U.S.C. §§ 332, 1654. 2071. 2072 (1970). 

Judicially created rules regulating attorneys' conduct would pose no 
serious separation of powers problems. Congress originally delegated 
regulation of counsel to the courts in § 35 of the Judiciary Act of 1789. 
That delegation survives today in 28 U.S.C. § 1654 (1970), which pro- 
vides that "parties may plead' and conduct their own cases personally 
or by counsel as, by the rules of such courts, respectively, are permittee! 
to manage and conduct causes therein." Although the federal courts 
have generally been content to leave regulation of attorney qualifica- 
tions to the states, they are not required to do so. Theard v. United 

9 E.g., change of venue, continuance, sequestration. 

io Homer Cummings, "The New Criminal Rules— Another Triumph of the Democratic 
Process," 31 A.S.A.J. 236, 237 (1945). ' 


States, 354 U.S. 278, 281 (1951). In light of § 1654, the courts do have 
the power to establish disciplinary rules for attorneys, subject to the 
requirements of the Constitution and any limits on that power which 
Congress may impose. 

But what about judicial authority to make rules regulating other 
aspects of the fair trial-free expression problem? Title 28, U.S.C. 
£ 2071 (1970) authorizes the "Supreme Court and all courts established 
by Act of Congress" to '"prescribe rules for the conduct of their busi- 
ness," providing such rules are "consistent with the Acts of Congress 
and the rules of practice and procedure prescribed by the Supreme 
Court." Section 2072 of the same title provides direct authorization to 
the Supreme Court alone to "prescribe, by general rules, the forms 
of process, writs, pleadings, and motions, and the practice and proce- 
dure of the district courts and courts of appeals of the United States 
in civil actions." Absent congressional objection, these rules are to take 
effect 90 days after submission to Congress. They may not, however, 
"abridge, enlarge or modify any substantive right . . ." 28 U.S.C. 
§2072 (1970). 28 U.S.C. §332 (1970) establishes judicial councils 
consisting of all the circuit judges in each circuit. It provides that 
"[e]ach judicial council shall make all necessary orders for the effec- 
tive and expeditious administration of the business of the courts within 
its circuit. The district judges shall promptly carry into effect all 
orders of the judicial council." 

These three statutes effectively authorize each federal court to make 
its own rules for "the conduct of its business." provided they do not 
conflict with the rules promulgated by higher courts; authorize the 
Supreme Court to promulgate procedural rules for all lower courts; 
and authorize the judicial council in each circuit to promulgate rules 
for the "administration of business" in its district courts. 

The scope of the rulemaking power is not crystal clear. Despite the 
broad language of § 2071, both § 2071 and § 2072 have been construed 
to grant onlv procedural rulemaking power. United States v. Hvass, 
147 F. SuppI 594 (N.D. Iowa 1956),Vev'd on other grounds, 355 U.S. 
570, appeal dismissed, 257 F.2d 812 (8th Cir. 1958). Although there 
appears to be no authoritative construction of §332. it presumably 
would receive a similar narrow reading. If so, courts would be author- 
ized to make rules governing the resolution of fair trial-free expression 
8 providing there are no conflicting federal statutes, and only to 
the extent that those rules may be regarded as procedural rather than 

A iv rules providing for the conduct of voir dire examinations or 
instruction of jurors or granting of continuances procedural or sub- 
stantive ? And what about rules regulating t In* conduct of parties, wit- 
3, or news media outside the courtroom? " Unfortunately, rules 
do not fall neatly into two "mutually exclusive categories with easily 
tamable contents." Sibbach v. Wilson <(■ Co., 312 CIS. L, 17 
(1941) (Frankfurter. J., dissenting). The concepts of "procedure" 
and "substance" are car from self-defining, and no clever verba] for- 
mula can produce a practical litmus paper test or a bright line of 

11 Note ih.'it tim Kaufman Report did not reggeel the edoprJoo of inch rules, while if 
did Indicate thai restriction! <>n trial participants might be Imposed i>y ■pedal orders 
in particular cases, thli suggestion does sol Implicate the rulemaking power of the courts. 


demarcation between them. 12 Restrictions on trial participants, for 
example, might be said to be procedural rules in that they are intended 
to maintain the integrity of the process by which one determines sub- 
stantive rights. Yet they obviously have a direct impact on important 
substantive rights which are protected by the First Amendment and 
are not themselves the subject of the primary litigation. 

The procedure-substance distinction aside, one should consider the 
policy considerations which prompted Congress to delegate rulemaking 
authority to the courts. 13 The first of these considerations was that pro- 
cedural rules are highly technical in nature. As such, they were thought 
to lie peculiarly within the expertise of the courts. Second, it was ap- 
parent that Congress had neither the time nor the interest to sustain 
consideration of a comprehensive set of rules of judicial procedure; 
rulemaking responsibilities would be better attended if they were 
vested in a small body with a special commitment to their develop- 
ment, rather than left to legislation generated by particular 

Beneath these considerations lay a central theme : Procedural rules 
would not normally involve fundamental conflicts between competing 
societal values. The precise content of the rules would be less impor- 
tant than their being knowable and consistent and tending generally 
to promote the fair and efficient resolution of legal disputes. It is 
primarily this theme which accounts for the stiff opposition en- 
countered by the proposed Federal Rules of Evidence when they 
went beyond prescriptions related to accuracy of fact-finding and at- 
tempted to prescribe the law with regard to evidentiary privileges. 14 
Such privileges, critics argued, were rooted in a belief that even the 
pursuit of truth should sometimes give way to other societal values, 
such as family loyalty and stability, or the right to effective and fully 
informed counsel. This meant that deciding the scope of evidentiary 
privileges required accommodation of competing societal values and 
was therefore appropriate for congressional, rather than judicial, leg- 
islation. Following expressions of concern in both the House and 
Senate, 15 Congress acted quickty to prevent the rules from taking effect 
without express congressional approval. 10 When the amended rules 
were subsequently enacted as amended, Congress voted to leave the 

12 The Supreme Court's decisions regarding the Erie Doctrine would seem not to be in 
point. See, e.g., Byrd v. Blue Ridge Electrical Cooperative, 356 U.S. 525 (395S) ; Guaranty 
Trust Co. v. York, 326 U.S. 99 (1945). While those decisions speak of the distinction 
between substance and procedure, they were concerned with settling problems of federalism 
in diversity cases, rather than problems of judicial power and Congressional intent. 
Similar words often mean very different things when applied to different issues in the 
law. As the Court noted in Hanna v. Plumer, 380 U.S. 400, 471 (1965) : The line between 
"substance" and "procedure" shifts as the legal context changes. ... It is true that both 
the Enabling Act and the Erie rule say, roughly, that federal courts are to apply state 
"substantive" law and federal "procedural" law, but from that it need not follow that 
the tests are identical. For they were designed to control very different sorts of decisions." 

Of all the Erie decisions, only Hanna v. Plumer involved a rule promulgated pursuant 
to the Enabling Act, 28 U.S.C. § 2072. Hanna did little to define the limits of the Courts 
rulemaking authority, concluding only that Congress has the "power to regulate matters 
which . . . are rationally capable of classification as either'' procedural or substantive, 
and that a rule providing for service of process obviously fell within the scope of j? "072. 

13 Cummings, "The New Criminal Rules — Another Triumph of the Democratic Process," 
31 A. B.A.J. 236, 237 (1945). 

"Hearings Before the Special Subcomm. on Reform of Federal Criminal Laws of the 
House Comm. on the Judiciary, 93d Cong., 2d sess., pp. 1 et seq. 313, 314, 318, 388, 51S 
(1973). Hearings Before the Senate Committee on the Judiciary, 93d Cong., 2d sess., pp. 
1 et scq. (1973). 

* Ibid. 

"Public Law 93-12. 


Supreme Court the authority to make amendments, subject to congres- 
sional disapproval within thirty days, but expressly provided that any 
amen Iment affecting an evidentiary privilege "shall have no force or 
effect unl s shall be approved oy act of Congress." 28 U.S.C.A. 

What does this mean for judicial rulemaking authority in the fair 
trial-free expression area? Rules which regulate the use of traditional 
techniques such as voir dire examination, granting of continuances, 
instruction of jurors, etc.. involve primarily questions of judicial effi- 
ciency and accurate fact-finding. These are the kinds of rules that Con- 
l 't to the courts. Whether, under the circumstances, they are 
left to judicial formulation may be argued, but judicial authority 
is clear. 

Rules imposing restraints on First Amendment interests are some- 
thing else. The raise broad questions of fundamental values, ques- 
tions which are neither highly technical nor peculiarly within the un- 
derstanding of the courts. It is arguable that any attempt by the courts 
or the judicial councils to establish such rules would exceed the bounds 
of intended congressional delegation of authority. 

Such a conclusion need not lead inevitably to a call for congressional 
fiction. In one sense, a limited rulemaking authority in the courts 
bodes well for First Amendment interests. If judicial rules could seek 
to insure the fairness of trials only by prescribing techniques other 
than restraints on extrajudicial statements and publications, the 
danger of standing rules restricting speech in cases where there is no 
substantial problem of prejudice would be considerably alleviated. 
Put such restrictions could still be imposed by special orders issued 
in particular cases since the power to issue special orders is separate 
from the general rulemaking authority of the courts. The practical 
effect would be that trial judges would have no guidelines telling them 
when such special orders are appropriate. Instead, they would be 
forced to make that decision on an ad hoc basis, under the intense 
pressure of a sensational trial. In such situations, their attention may 
be so absorbed by the immediate fair trial crisis that they will have 
little time or energy to consider the long-range societal values of a 
Tree press. 

Even if judicial promulgation of rules imposing restraints on First 
Amendment interests would not exceed the bounds of the Constitution 
and enabling Legislation, there are arguments for the view that Con- 
would be ill-advised to sit back and wait for others to act. 

Arguably Congress may be able to undertake a more balanced ex- 
amination of this problem ihan either the courts, the Judicial Confer- 
ence, or the American Bar Association. While lawyers share equally 
in the stake which all Americans have in the vitality of the First 
. they have a special responsibility to promote the fair 
linistration of justice. Similarly, when lawyers become judges (es- 
pecially t rial judges ) . sa feguarding the integrity of the judicial proc- 
ess in each case before them becomes their primary responsibility and 
often their preeminent concern. They may, naturally enough, per- 
ceive this responsibility as the quintessential characteristic of their 

professional role. Moreover, many judges and lawyers understandably 

may feel a little less anxiety than others about the need for public 
scrutiny of the judicial process. 


These observations must be kept in perspective. Our appellate courts 
especially can be proud of their record of sensitivity to the First 
Amendment in resolving fair trial-free expression problems. Never- 
theless, for so long as judges are selected from the ranks of mortals, 
they will have to fight back an inclination to focus most sharply on 
the importance of assuring the fairest possible trial — a focus which 
may cause their consideration of fair trial-free expression conflicts 
to suffer from a variety of tunnel vision. 

Congress, on the other hand, can bring to bear not only the exper- 
tise but the point of view of all those interested in the resolution 
of these issues. It can draw on the thoughtful reports of groups rep- 
resenting the bar, the bench, the press, and others. From such a founda- 
tion, Congress could effectively elicit testimony of concerned organiza- 
tions and individuals, foster constructive debate among its own mem- 
bers, and perform the legislative function of seeking an optimum 
accommodation of competing values. 

In addition, where legislation raises important constitutional is- 
sues, it may best be enacted by a body independent of that which 
must pass upon its constitutionality. This is implicit in Montesquieu's 
warning that there is no liberty when the judge is the legislator. 17 
And it is the same premise that lay behind our forebears' decision 
to constitute the Supreme Court as a body independent of the legisla- 
ture. "From a body which had even a partial agency in passing bad 
laws," argued Alexander Hamilton, 

we could rarely expect a disposition to temper and moderate them in the 
application. The same spirit which had operated in making them would be too 
apt to influence their construction : still less could it be expected, that men 
who had infringed the constitution, in the character of legislators, would be 
disposed to repair the breach in that of judges. 18 

It is well settled that courts must decide legal issues only in the 
context of a particular case or controversy, rather than through ren- 
dition of advisory opinions. In 1793, the young Supreme Court re- 
fused President "Washington's request for an advisory opinion on 
legal questions "of great importance to the peace of the United 
States." Chief Justice Jay explained : 

[T]he lines of separation drawn by the Constitution between the three de- 
partments of the government . . . being in certain respects checks upon each 
other, and our being judges of a court in the last resort, are considerations 
which afford strong arguments against the propriety of our extra-judicially de- 
ciding the questions alluded to . . ." 

Inherent in judicial promulgation of legislative rules are the dis- 
advantages associated with advisory opinions. And the same court 
which, acting without a case or controversy before it, has promulgated 
the rules may later have to evaluate its own handiwork — to determine 
in a particular case whether the rules pass constitutional muster. 

These considerations are relevant, it is true, not only to promulga- 
tion of fair trial-free expression rules, but to any exercise of rule- 
making authority by the Supreme Court. Nevertheless, they are 
especially relevant with regard to rules in this area because : (1) these 
issues are so closely intertwined with delicate constitutional problems 

"Quoted in The Federalist, No. 47 (J. Madison). 

58 Id., Xo. SI (A. Hamilton). 

™Mu8krat v. United States, 219 U.S. 346. 354 (1911). 


that there is clanger that the legislative and judicial roles of the court 
will come into conflict with one another: and (2) the issues are not 
so technical that they cannot be effectively dealt with by Congress, 
making it harder to argue that there is a countervailing necessity for 
judicial rulemaking sufficient to outweigh the damage done to the 
principles of separation of powers. 

One might suggest that if these rules were promulgated by each 
district court individually, separation of powers problems would be 
minimized. As a practical matter, however, it is unlikely that most 
district courts would undertake the kind of thorough analysis neces- 
sary to formulate fair trial-free expression rules. One need only look 
at the current situation to realize that they are likely to rely on the 
Judicial Conference or the Judicial Councils of the circuits for author- 
itative guidance in this area. In reality, the rules would probably be 
determined largely by appellate judges. 

Moreover, even if rules were formulated independently by each dis- 
trict court, we would pay a high price in terms of efficient and com- 
prehensive examination of the issues, as well as national uniformity of 
federal court procedures. 

In short, both the need to approach the issue of judicial restraints 
on expression from a balanced point of view, and fundamental prin- 
ciples underlying the separation of powers doctrine suggest that Con- 
gress should consider formulating rules for the resolution of conflicts 
between the rights of fair trial and free expression. 

2. Conclusions 

(1) Congress has constitutional authority to prescribe rules for the 
lower federal courts. The content of its rules must not conflict with 
other provisions of the Constitution and may conceivably be limited 
by a requirement that the courts be left adequate means to assure a 
fair trial. 

(2) It is ultimately the responsibility of the Supreme Court to 
determine what rules are constitutionally required and what rules are 
constitutionally permissible. But to the extent that it chooses to ap- 
proach fair trial-free expression questions one at a time, rather than 
in broad strokes, there may be a stronger case for rulemaking or legis- 
lation. Should it become evident the Constitution leaves important 
questions in this area unanswered, this would also bear on the need for 
rules or legislation. 

(3) The courts have authority to promulgate rules prescribing use 
of procedural devices to preserve a fair trial but may not have author- 
ity to promulgate rules setting forth conditions under which freedom 
of expression may be abridged. Consequently, to leave rulemaking 
to the courts without Supplementing their statutory authority might 
mean that trial judges would have no rule to tell them when, if ever, 
such abridgement may be appropriate. They would be left to make 
ad hoc decisions, perhaps under intense pressure generated by a 
sensational trial. 

I 1 ) Eyen assuming the courts' authority to promulgate such rules, 
Congress mighl he ill-advised to ^it back and await further action 
by the bar or the bench. Because judges are likely to view protection 
of the integrity of judicial processes as their special trust, their out- 
look- regarding fair trial-free press problems may sometimes be 


skewed. Congress is in a position to draw on the expertise of a wide 
spectrum of groups and individuals in order to undertake a more 
balanced examination of the issues. Moreover, since legislation in this 
area would raise important constitutional issues, separation of powers 
principles may best be served if it is enacted by a body entirely inde- 
pendent of that which must pass upon its constitutionality. 

(5) At the same time, the dangers of Congressional action should 
be considered. Determining just how to vindicate both the values 
inhering in free expression and the interests of a fair trial requires 
care and sensitivity. It is one thing for a scholar or a study group 
to refine an approach to the problem ; it may well be a riskier thing 
to seek to hammer out legislation in the often awkward legislative 
process. Whether the First Amendment will be well served or deni- 
grated by attempts at legislation is a question that must be asked. 

(6) If hearings are held, witnesses should be asked the threshold 
question of the advisibility of Congressional legislation, in addition 
to questions regarding the form such legislation might take. 



1. General Considerations 

a. The Constitutional Interests at Stake 

The Constitution guarantees the right to trial by an impartial jury 
and the rights of freedom of speech and press. These guarantees, like 
others in the Constitution, are not simply ends in themselves; rather, 
they are intended to serve larger individual and societal interests. 
Thus courts are often asked to determine whether various interests 
not explicitly mentioned by a particular guarantee fall sufficiently 
close to its core as to be included within the right itself. We need not, 
however, draw such a sharp distinction in this report. For as Congress 
examines not only the constitutionality but the wisdom of judicial re- 
straints, it must go beyond discussion of whether such restraints in- 
fringe rights guaranteed by the Constitution, in order to take a broad 
view of the interests which those rights were intended to serve. 

The interests served by the fair trial guarantees are relatively 
straightforward. First and foremost, the defendant has a personal 
right not to suffer punishment or liability at the hands of the 
state without procedures designed to insure a verdict that is fair and 
reliable. Secondly, the state and the public have an interest in seeing 
that the judicial system operates fairly and efficiently. Thirdly, the 
state and each member of the public have an interest in preserving 
public confidence in the ability of the judicial system to settle disputes 
and in the legitimacy of its verdicts. 

The values advanced by First Amendment guarantees are more 
varied and complex. Thomas Emerson has suggested that protection 
of the right to free expression serves four overarching goals. First, 
it is essential to individual self fulfillment — to the realization of the 
character and potential of each human being. 20 Each of us must 
be free to search for truth by examining the opinions of others, and. 
as an integral part of that search and as an affirmation of self, to ex- 
press our own ideas. 21 

20 Thomas I. Emerson, Toward a General Theory of the First Amendment (New York 
1966). p. 4. 
81 Id., p. 5. 


Second, free expression serves to advance the society's search for 
truth and knowledge. We believe that "the best test of truth is the 
power of the thought to get itself accepted in the competition of the 
market," 22 and that even false statements serve as catalysts which 
may bring about "the clearer perception and livelier impression of 
truth, produced by its collision with error." 23 It follows that a system 
of free expression maximizes our opportunity to arrive at better judg- 
ments by "considering all facts and arguments which can be put forth 
in behalf of or against any proposition." 24 

Third, free expression serves to facilitate meaningful, informed, and 
democratic participation in social and political decision-making. 23 

Finally, Emerson suggests, the First Amendment helps maintain a 
healthy balance between stability and change in society. Free discus- 
sion prevents excessive rigidity, fosters adaptation, and dampens 
frustration and alienation by permitting dissidents to express their 
views and to hope for change within the system. 26 

Each of us could probably think of other broad values which are 
arguably advanced by the First Amendment. But it may be more use- 
ful to ask, bearing Emerson's suggestions in mind, what benefits are 
derived by permitting free expression regarding crime and civil and 
criminal litigation. Our answer to this question leans heavily on the 
Reardon Committee's comprehensive analysis of the benefits derived 
from the reporting of criminal matters. 27 Indeed, there is little we need 
add to the Committee's anatysis except to reorder it in a way better 
adapted to our approach to the problem, and to add a consideration of 
the interests served by discussion of civil litigation. 

It is worth noting at the outset that in a given case some individuals 
may have a greater stake in free expression than will others. Par- 
ties to the litigation, for example, will normally havo an especially 
compelling interest in combatting any stigma which may attach to 
their role in the proceedings, in calling the public's attention to issues 
raised by the case, and in using the First Amendment to prevent abuses 
of governmental power. Similarly, the First Amendment interests of 
the general public will be especially compelling in cases such as 
those involving the conduct of elected officials. Subject to these consid- 
erations, the major values advanced by free expression regarding mat- 
ters related to law enforcement, prosecution, and litigation may be 
summarized as follows. 

(1) Facilitating a fair trial. — Permitting uninhibited discussion 
may sometimes lead to the production of witnesses or evidence, either 
through the personal investigation of reporters or because wit i : 
bear about the case through the media and come forward to testify. 
Reardon Report, p. 49. Free expression may also contribute to the 
fairness of a trial by permitting the defense to counter I he prejudicial 
impact which an indictment may have on the impartiality of jurors. 
Chicago Council of Lawyers v. Bauer, 522 F.2d 242, -•*»<> (Tlh Cir. 
1975), cert, denied, 9G S. Ct, 3201 (1976). 

(.proms v. fnitrd state*. 250 U.S. 616* 690 (1919) (Holmes, J. Absenting) . 
John smart Mill, On Lfbertv (Oxford, U)47), i>. 15, cited in New York Time$ v. 
SulUvan, 87* U.S. 254, 27u n.lii mjmM). 

* Emerson, 3 "oteord a General Theory of the First Amendment, p. 7. 
»/f/. ( pp. s 11. 
"Id., pp. 11-15. 

** Reardon Report, pp. 47 51. The Committee*! analysis was based on sctsmslre Interviews, 
distribution of Questionnaires, and other research. Jbid. 


(2) Protecting the public safety. — Free expression may help to pro- 
mote the public safety by warning the public when criminals are at 
large or when the public health may be endangered by environmental 
pollution, unsafe drugs, inadequate safety standards, etc. It may also 
play a role in "uncovering the existence of crime, and seeing to it that 
wrongdoers are duly prosecuted," aiding in the apprehension of crimi- 
nals and the solution of public health problems, and, where appro- 
priate, providing reassurance to the public that wrongdoers are being 
dealt with. Reardon Report, pp. 47-48. 

(3) Permitting public scrutiny of the process of law enforce- 
ment. — The glare of publicity can help to prevent abuses of police, 
prosecutorial, and judicial discretion. When abuses or inefficiencies do 
occur, the free exchange of information can help to bring them to 
public attention and make them the subject of constructive criticism. 
Id., p. 50. At other times, it can serve to reassure the public that those 
involved in the processes of law enforcement are doing their jobs as 
they should be done. Id., pp. 48-49. 

(4) Educating the public. — Free exchange of information aids the 
public in understanding the workings of the judicial and police systems 
and the nature and extent of crime. Moreover, important social and 
political issues underlie civil and criminal cases alike. In the most 
immediate sense, we can all think of prosecutions or civil litigation 
which have directly centered around issues of governmental policy, 
corporate responsibility, professional standards, civil rights or civil 
liberties, etc. Looked at more broadly, all trials implicate fundamental 
policy questions, such as the morality and effectiveness of the criminal 
sanction, the circumstances under which individuals should be held 
liable to the state or to others for the consequences of their conduct, and 
the efficiency and reliability of the fact-finding process. 

b. The Dynamics of Judicial Restrictions 

It is essential to keep in mind that fair trial-free expression guide- 
lines, whether formulated by Congress or the courts, have to be admin- 
istered by human beings acting under intense pressure. 28 

The First Amendment by its very nature will commonly be under- 
valued unless it is viewed in long-range terms. If, for example, we 
evaluate the short-range benefit derived from a particular speech 
advocating an idea with which we strongly disagree, we might well 
feel that that benefit, standing alone, is not very substantial. It is 
only when we can stand back and view free expression in the perspec- 
tive of history that we are likely to ascribe to it the importance it is 

We have already suggested that trial judges are likely to be pre- 
eminently concerned with safeguarding the fairness of the particular 
trial before them. Their decisions will often be made in the heat of a 
situation they believe is in danger of getting out of hand. They will 
not have the luxury of an appellate court's hindsight to put the case 
in perspective and determine whether the situation really was as 
threatening as it seemed at the time to those most directly and per- 
sonally involved. 

It will be difficult, in such a situation, to look beyond the interests 
most immediately at stake. The trial judge is unlikely to be preoccu- 

28 Thomas I. Emerson, The System of Freedom of Frpression (New York, 1970), pp. 9-11. 


pied, for example, with the dangers of preventing public scrutiny of 
the judicial process in his or her courtroom, or Avith the long-term 
educational value of the proceedings. The benefits derived by free ex- 
- ; on are likely to appear largely theoretical and remote; its bene- 
ficiaries, widely dispersed. The benefits of insuring a fair trial will be 
obvious, practical, and immediate, and its principal beneficiaries will 
be in court to emphasize its importance forcefully and dramatically. 
Under these circumstances, it would take a human being of unusual 
perspective to keep fully in focus the panoramic purposes of free ex- 
pression. Few of us could be sure that we would not overlook, in the 
heat of trial, just how much greater is the First Amendment than the 
sum of its parts. 

Moreover, we must remember that timeliness is the hallmark of 
news. 29 The press is in the business of printing news, not history. ° and 
the public's attention can best be commanded by current reporting 
of events as they unfold. Mr. Justice Blackmun observed, as lie granted 
a partial stay of a restrictive order, "[E]ach passing day may consti- 
tute a separate and cognizable infringement of the First Amendment. 
The suppressed information grows older. Other events crowd upon it. 
To that extent, any First Amendment infringement that occurs with 
each passing day is irreparable.*' 31 

A full recital of all the events of a trial which has been concluded 
will seem more remote, just as events which happen in other parts of 
the world seem less immediate than those which happen in our 
own neighborhoods. Our reaction to "stale" news is likely to be leav- 
ened by a sense that we are dealing with a fait accompli. And, as every 
writer knows, a reader's avid appetite may turn to boredom if we ask 
that too much material be digested at a single sitting. Thus a restric- 
tive order may do its damage before it can be reviewed by an appellate 
court. "Indeed." as Professor Kickel suggests, "it is the hypothesis of 
the First Amendment that injury is inflicted in our society when we 
stifle the immediacy of speech."' 82 Accordingly, we must search for 
guidelines that will not only provide a basis for overturning restric- 
tive orders unjustifiably imposed but will also prevent their imposi- 
tion in the first place. 

These considerations indicate that we must attempt to define any 
limitations on free expression as narrowly and precisely as possible, 
lest the exceptions swallow up the rule. 38 They also imply that we 
should consider defining certain kinds of restrictions that should be 
prohibited altogether, rather than asking judges to make each of their 
decisions in this area on a case-by-case basis. 

2. Alternatives to Ri strictwe Orders 

Until recent years, the courts have traditionally sought to protect 
fair trial interests in ways which threaten neither the First Amend- 
ment nor the larger interests it is designed to serve. Indeed, it has been 
suggested that to characterize the fail- trial-free expression issues "as 
involving a 'clash' of constitul ional values ... is to misconceive them." 

"Bridge* v. California, 814 D.8. 252, 268 88 (1941). 

m Brief for the Washington Port Co., <t «/., m Amid Curia* at 32-33, Nebraska 

1'rcHH \hh'h v. Stuart, No. 7.~> SIT. 

Chamber* opinion of Blackmun, .1., in Nebraska Press A§s*n v. Stuart. f_ I U.S. 
1327 (Nov 20, 1975). 

Blckel, The Morality of Consent (New Haven, 1875), p. 61. 
■ i nomas I. Emerson, The System of Freedom <>} Emprossion (New York, 1070), pp. 0-11. 


"[RJarely if ever," it is argued, "will there be a tension between two 
great protections sufficient to require one or the other to yield.' 5 34 

If taken literally, this argument overstates the case. If we were con- 
cerned only with providing a fair trial in a particular case, we would 
undoubtedly condone restrictions on speech which we in fact condemn. 
As the Reardon Report concluded, each of the so-called traditional 
techniques will often be only partially effective or will require some 
compromise in other fair trial rights. 35 Nevertheless, we believe that 
the techniques traditionally used by the courts to insure a fair trial are 
normally adequate to fulfill their task and are nearly always preferable 
to the use of orders restricting the exercise of free expression. At the 
same time, we urge Congress to give further study to the effectiveness 
of these traditional techniques and to consider the desirability of modi- 
fications to increase that effectiveness. 

a. Change of Venue 

Rule 21(a) of the Federal Rules of Criminal Procedure provides 
for transfer of proceedings to another district if the judge is "satis- 
fied that there exists in the district where the prosecution is pending so 
great a prejudice against the defendant that he cannot obtain a fair 
and impartial trial . . . ." 

18 U.S.C. § 3161(8) (A) (1974) indicates that a continuance is to 
be granted if the judge determines that "the ends of justice served by 
taking such action outweigh the interest of the public and the 
defendant in a speedy trial," and that failure to grant a continuance 
would be "likely" to "result in a miscarriage of justice." 

After a thorough empirical study, the Reardon Report concluded 
that changing venue and granting a continuance were seriously 
underutilized but potentially very effective safeguards for the rights 
of defendants. The Supreme Court has repeatedly emphasized that 
"where there is a reasonable likelihood that the prejudicial news prior 
to trial will prevent a fair trial, the judge should continue the case un- 
til the threat abates, or transfer it to another countv not so permeated 
with publicitv." Sheppard v. Maxwell. 384 U.S. 333, 363 (1966) : see 
Rideau v. Louisiana, 373 U.S. 723, 727 (1963) ; Irvin v. Dowd, 366 U.S. 
717,728 (1961). 

One must question a federal standard which permits a change 
of venue only when a judge is fully satisfied that a fair trial is an im- 
possibility in his or her district. Such a standard seems inconsistent 
with the Supreme Court's decisions and unlikely to serve either the 
appearance or the reality of justice. Moreover, it fails to take into ac- 
count that a change of venue may often be preferable to sequestration 
of the jury, lengthy and detailed voir dire examination, or other tech- 
niques which might make a fair trial possible, but inconvenient or 

The federal standard for granting of continuances, while les^ con- 
crete and less objectionable, also seems not to conform to the "reason- 
able likelihood" principle endorsed by the Supreme Court. Like the 
federal venue provision, its application could invite reversal of con- 
victions on appeal. 

34 Brief of thp American Civil Liberties Union, et ah, as Amiei Curiae at S- 7, Nebraska 
Pre** Ao/t'n v. Stuart. w*nro. 
85 Reardon Report, p. 75. 


Accordingly, Congress should consider amending Rule 21(a) and 
18 U.S.C. §3161 (8) (A) (1974) by adopting the rule recommended 
by the Reardon Report : 

A motion for change of venue or continuance shall be granted whenever it 
is determined that because of the dissemination of potentially prejudicial ma- 
terial, there is a reasonable likelihood that in the absence of such relief, a fair 
trial cannot be had. 38 

The Reardon Report also noted that a major reason for judges' 
reluctance to grant changes of venue may be their inherent unwilling- 
ness to admit that they cannot assure a fair trial in their own court- 
rooms. 37 Others have suggested that some judges may prefer to retain 
jurisdiction over sensational cases because of an affinity for the lime- 
light. Both these problems might be alleviated somewhat by a re- 
quirement that motions for change of venue be heard by a different 
judge than the one who will preside over the case if the motion is 
denied. Congress should consider such a change, while bearing in mind 
the loss in judicial efficiency which might result. 

b. Selection of the Jury 

Rule 24(a) of the Federal Rules of Criminal Procedure and Rule 
47(a) of the Federal Rules of Civil Procedure provide that the court 
may either permit defense and prosecution attorneys to conduct the 
voir dire or may itself conduct it. If the court conducts the proceed- 
ing itself, it is to permit such further inquiry "as it deems proper." 

Congress should consider whether counsel for the parties should 
be given a statutory right to question prospective jurors, subject, of 
course, to the court's authority to bar questions for irrelevance or be- 
cause the questions themselves are likely to engender prejudice. Such 
a procedure might make for a more searching voir dire but could entail 
serious costs in terms of delay. 

The Reardon Report, while expressing deep reservations about the 
effectiveness of voir dire, found that the procedure was viewed as 
relatively effective in areas where the examination of each prospective 
juror took place out of the presence of the others. 38 Congress should 
consider amending Federal Rule of Criminal Procedure 24(a) and 
Federal Rule of Civil Procedure 47(a) to embody the AlVVs recom- 
mendation that whenever there is a "significant possibility" that some 
member of the venire will be ineligible because of exposure to pre- 
judicial material, the examination of each juror shall take place out- 
side the presence of the others. 39 

28 U.S.C. § 1870 provides that each party to a civil cnse is entitled 
to three peremptory challenges of jurors. Rule 24(b) of the Federal 
Rules of Criminal Procedure 4 specifies that the number of peremptory 
challenges to be accorded each side in a criminal proceeding depends 
upon the seriousness of the offense charged and ranges from twenty 
challenges if the offense is punishable by death to three challenges if 

the offense is punishable by imprisonment for not more than one year. 
These numbers are probably adequate for most trials. }\\\\, as the 
American Civil Liberties Union argues, they l\:)\o nearly always been 
exhausted in fair trial-free expression cases reaching the Supreme 

" Pr-nr'ion Report, p. S. Recommendation 3.2(c) (Approved Pmft). 

"Id., P- 121. 

■ hi., pp, 1HA-S7. 

» id., p. o, Recommendation 3.4 (Approved Dr.-ifn. 


Court. The ACLU suggests that the Constitution may actually require 
that the limit on peremptory challenges yield in sensational cases to the 
defendant's right to a fair trial. 40 In the same vein, the Twentieth 
Century Fund's Task Force has suggested that more peremptory chal- 
lenges should be allowed upon a showing of pervasive publicity. 41 Con- 
gress should study these recommendations and ways of implementing 

c. Waiver of Jury Trial 

Rule 23 of the Federal Rules of Criminal Procedure now provides 
that jury trial may be waived only "with the approval of the court 
and the consent of the government." 

Waiver of jury trial is not a happy solution to problems of prej- 
udice, since it forces the defendant to choose between two important 
constitutional rights. Nevertheless, both the American Bar Associa- 
tion and the Twentieth Century Fund Task Force have recommended 
that waiver be permitted whenever it is knowingly made and a non- 
jury trial would result in greater fairness. 42 The ABA would permit 
such a waiver whenever it was reasonable to conclude that a bench 
trial would be fairer. 43 The Twentieth Century Fund would permit 
it only when the judge was "convinced" such would be the case. 44 

It is important that both the public and the defendant know the 
trial was as fair as possible. Moreover, as we have already suggested, 
the Sixth Amendment's fair trial guarantee is intended above all to 
protect the rights of the defendant. Therefore we suggest that Con- 
gress consider amending Rule 23, so as to permit the defendant to 
waive a jury trial whenever (1) he or she reasonably concludes that, 
because of prejudicial publicity, a bench trial is likely to accord greater 
fairness, and (2) the waiver is made in writing, knowingly and 

d. Cautionary Instructions to the Jury 

At many stages of most jury trials, we rely on the good faith and 
ability of the jurors and assume that they will indeed follow the court's 
instructions to consider evidence only for a limited purpose or, in 
some cases, not to consider certain evidence at all. On the other hand, 
the "fair trial" cases discussed supra, pp. 9-15, make clear that 
the Supreme Court has less than complete confidence that jurors will 
always abide by a trial judge's admonitions. Generally, the Court has 
held that when the information presented to the jury was highly 
prejudicial, its admission could not be cured by judicial instruction. 

There is sharp disagreement about the effectiveness of judicial ad- 
monitions to the jury as a remedy for prejudicial publicity. The con- 
ventional-wisdom is that jurors routinely ignore their instructions. 
Thus trial lawyers frequently advise that evidence will be considered 
in light of all its implications, regardless of the limited purpose for 
which it has been admitted. The Reardon Committee found that of 
54 defense attorneys asked about the effectiveness of admonitory in- 
structions, only eight said they were "effective," another eight said 

*° Brief of the ACLU, et at, as Amlci Curiae, at 22, Nebraska Press Ass'n v. Stuart, supra. 
°- Right* in Conflict, p. 11. 

42 Rear don Report, p. 9, Recommendation 3.3 (Approved Draft); Riphts in Conflict, 

43 Reardon Report, p. 9. Recommendation 3.3 (Approved Draft). 
** Riahts in Conflict, p. 13. 


they were "somewhat effective,'' and 35 thought they were altogether 
"ineffective." 45 Trial judges were similarly divided in their opinions, 
with 27 labelling the instructions "effective," seven labelling them 
"somewhat effective," 17 labelling them "ineffective," and another 17 
expressing no opinion. 46 

Nevertheless, the Reardon Committee concluded that "a properly 
framed admonition is likely to be helpful." Petitioners in the case 
of Nebraska Press Association v. Stuart have argued strongly that 
such instructions are indeed effective and have cited a number of re- 
cent studies in support of that conclusion. 47 

As we noted at the outset of this report, we have focused upon 
the implications of constitutional law and theory for various alterna- 
tive solutions to the fair trial-free expression problem. AYe have made 
no attempt to synthesize or analyze the various empirical studies 
purporting to describe the effect of prejudicial publicity on the jury 
or the effectiveness of judicial admonitions or other tradition tech- 
niques directed at countering that publicity. The Subcommittee would 
be well advised to evaluate these studies before undertaking any legis- 
lative action. 


In the commentary that follows, we return to each of the major 
topics we have discussed in this report. With respect to each, we (1) 
summarize our conclusions regarding the state of the law; (2) pro- 
vide a brief recapitulation of the Judicial Conference's recommenda- 
tions, since these recommendations have become rules in most of the 
federal district courts; (3) discuss the impact of restrictive rules on 
fairness of trial and freedom of expression; and (4) indicate ques- 
tions which we believe Congress might consider. 

This commentary is not intended to provide a blueprint for immedi- 
ate legislative action. As this survey of the relevant law and major 
studies demonstrates, the fair trial-free expression problem is quite 
complex. Morepver, our inquiry has focused primarily on legal and 
philosophical issues, rather than on empirical studies regarding the 
effectiveness of various techniques for insuring juror impartiality. 
Accordingly, our effort will be to frame issues the resolution of which 
might help to bring about a better accommodation of First and Sixth 
Amendment values and on which Subcommittee hearings, were they 
to be held, might profitably focus. 

/. Direct Restraints on the Press 

The state of the law is probably clearer with regard to direct 
restraints on the press than with regard to any other area of the 
fair trial-free expression controver sy . Unfortunately, such relative 
clarity still leaves room for confusion and uncertainty. As this re- 
port is written, the Supreme Court is about to issue its first decision 
directly addressing the legality of direct restraints on the press in 

the context of a threat to the fairness of a jury trial.* 8 After that 
decision, the law will be what the Supreme Court says it is, and we 
make no pretense to clairvoyant foreknowledge of that decision. 

1 ReardOH Report, p. 256. Thrcp did n<>t rr^pond. 
«* hi., p. 240. 

"Reardon Report, p. 146; BriaC f<>r Petitioner! at 30-31, \ehra*1<a Pre** A$**n v. 
fctuart, Hiipra. 

** Sop Addendum, infra p. 81. 


Nevertheless, the weight of precedent indicates that direct restraints 
on the press could not pass constitutional muster unless they were 
the least drastic means available to deal with a clear and present 
danger to the fairness of a jury trial. 

All of the major reports on the fair trial-free expression issue agree 
that permitting such direct restraints under any lesser standard is 
unnecessary and unwise. Indeed, except for the Reardon Report's 
very narrowly drawn contempt provisions, they unanimously con- 
clude that such restraints are inappropriate under any circumstances. 
Since this conclusion was shared by the Kaufman Report, it is the 
effective rule in the federal district courts. 

Accordingly, while Congress has the authority explicitly to limit 
the contempt power of the federal courts if it chooses to do so, there 
is probably no need for legislation in this area. 49 This conclusion 
should be weighed in light of what the Supreme Court does in 
Nebraska Press Association v. Stuart. 50 

2. Orders Restricting Extrajudicial Statements by Trial Participants 
The conflict between circuits as to whether orders restricting extra- 
judicial statements by trial participants must pass a "clear and present 
danger" test or only a "reasonable likelihood of prejudice" test has 
yet to be resolved by the Supreme Court. Indeed, the Court may shy 
away from explicitly adopting either of these phrases, in view of its 
current inclination to resolve difficult constitutional issues by balanc- 
ing competing interests. Nevertheless, whatever method of analysis 
the Court may adopt, its firm precedents requiring a "clear and present 
danger" when contempt convictions were not preceded by court orders, 
and its consistent emphasis that prior restraints come to the court 
bearing a heavy burden against their validity, indicate that any less 
demanding standard could only be justified because of the special 
status of trial participants. 

The Kaufman Report recommended adoption of standing rules of 
court placing strict limits on statements by attorneys in all criminal 
cases, purportedly on the basis of a finding that such statements 
are, as a general rule, reasonably likely to prejudice a trial. It also 
proposed that special orders be issued in sensational cases limiting 
extrajudicial statements by parties and witnesses. The report did 
not say what standard of necessity would have to be met before im- 
position of such special orders would be justified. 

In evaluating both the wisdom and the constitutionality of rules 
restricting speech by trial participants, one must ask which categories 
of trial participants might be silenced, with regard to what kinds of 
disclosures, and under what standard of necessity. One must also 
examine the extent to which restrictions on one category of trial 
participants (e.g., attorneys) may have a different impact on both 
First and Sixth Amendment interests than similar restrictions on 
another category of participants (e.g., witnesses). There are, how- 
ever, some general principles which cut across these categories. 

"One caveat should be noted to this conclusion. Tf no other legislative or .judicial action 
is taken to prevent application of the UMW- Walker-Dickinson collateral bar rule to judicial 
restraints affecting First Amendment interests (see Recommendation regarding collateral 
bar, infra, pp. 77-78), an explicit legislative rejection of direct judicial restraints on 
the press might help reporters .sustain an argument that such orders have "only a frivo- 
lous pretense to validity" and therefore fall within an exception to the collateral bar rule. 

80 See Addendum, infra pp. 81. 84. 


a. Restrictions on Trial Participants Affect the First Amend- 
ment Interests of the Public 

Like direct restraints on publication, restrictions on trial partici- 
pants impinge on the First Amendment interests of the public as well 
as those of the would-be speaker. The press is, as California Attorney 
General Evelle Younger points out, "a conduit through which infor- 
mation flows to the public.'* It cannot print what it cannot learn. 
''Whichever end of that conduit is blocked, the public remains unin- 
formed." 51 Nevertheless, it is often assumed that restrictions on trial 
participants are, in several respects, less damaging to First Amend- 
ment interests than direct restraints on the press. 

Some have argued, for example, that restrictions on trial partici- 
pants leave a safety valve for those situations in which the circum- 
stances are so outrageous that someone will be willing to take the risk 
of making covert disclosures to the press. As we noted earlier, how- 
ever, the Supreme Court's Branzburg decision, 408 U.S. 6G5 (1972), 
permits courts to hold reporters in contempt for refusing to reveal the 
source of such disclosures. While Branzburg does not totally close the 
"safety valve," it limits its effectiveness to those situations in which 
either the trial participant or a reporter or both are willing to face a 
very substantial risk of imprisonment. Such a contingency is a slender 
reed upon which to rest the public's interest in information about 
judicial proceedings. 

Others, including Mr. Justice Stewart, 52 have argued that the 
phrase "or of the press" would be a constitutional redundancy unless 
the First Amendment was intended to provide special protection to 
the press as an institution. The role of the press, under this view, is 
that of an institutional adversary, responsible for serving as a check 
on the three formally established branches of government. Accord- 
ingly, restrictions on the press can pose an even greater threat to our 
system of government than restrictions on individual speech. Mr. 
Justice Stewart contends that this notion underlies the Supreme 
Court's decisions limiting newspaper liability for libel of public 
officials. This argument has yet to be adopted by the Court, however, 
and does not in any way derrogate the public's First Amendment 
interest affected by restrictions on trial participants. 

Finally, it is argued that just as government (absent statutes to the 
contrary) can order its employees to keep secrets, so the courts, be- 
cause of their special relationship with trial participants, can require 
silence of those who are to appear before them. It should be noted, 
however, that to the extent such "special relationships" are relevant 
to this problem, they will diminish only the First Amendment rights 
of the Would-be speaker and the public; they will not affect the First 
Amendment interests served by public disclosure of information re- 
garding judicial proceedings. As Congress examines not only the con- 
stitutionality but the wisdom of judicial restraints, if must go beyond 
discussion of whether such restraints infringe r'nrhfs guaranteed by 
the Constitution in order to ^ake a broad view of the interests which 
Chose lights were intended to serve. 

■ Fvelle J. Younger, "Fnir Trinl, Free Tress and the Mnn in the Middle," ?>C> A. I' \ T. 
127. ISO (lft70). 

82 Potter Stewart, "Or of the Press, " 20 llantinqn L.J. Ml (107.".). 


b. The Burden of Justification for Restrictive Orders : Criminal 

Cases versus Civil Cases 

Federal case law provides little hint of whether judicial restrictive 
orders issued in civil proceedings must bear a heavier burden of justi- 
fication than those issued in criminal proceedings. The American Bar 
Association and the Judicial Conference would impose restrictions on 
the speech of attorneys in both types of cases. The history of these 
proposals indicates, however, that inadequate attention has been paid 
to differences in the interests entailed in civil and criminal 

The parties' interests in a fair trial are generally treated as less com- 
pelling when a criminal conviction is not at stake. Presumably, this 
reflects the fact that while civil penalties may sometimes be as severe as 
criminal sanctions, generally neither imprisonment nor the stigma of 
criminality attach to a finding of civil liability. Whatever the explana- 
tion, the lower level of protection provided in civil cases can be seen 
throughout our judicial system. Some assurance of fair proceedings in 
civil cases is implicit in the due process clause of the Fifth Amend- 
ment, but the Constitution devotes far more explicit attention to the 
Sixth Amendment guarantees of fairness in criminal trials. A criminal 
conviction will be reversed upon a showing that the defendant was 
unjustly deprived of the right to a public trial, but a civil verdict may 
be overturned only upon a showing that deprivation of that right re- 
sulted in actual prejudice. We require "proof beyond a reasonable 
doubt" to support a criminal conviction, but we ask only a "preponder- 
ance of the evidence" to support a civil verdict. The Supreme Court 
has held the Sixth Amendment's guarantee of a jury trial in criminal 
cases sufficiently fundamental to justify its extension to the states via 
the Fourteenth Amendment ; it has yet to require the states to honor 
the Seventh Amendment's guarantee of jury trial in civil cases, and 
is unlikely to do so. Finally, while the Constitution requires that an 
indictment precede federal criminal prosecutions, no analagous pro- 
tection is accorded defendants in civil suits. 

The dangers of abuse accruing to use of restrictive orders in civil 
cases are especially troubling. Since civil defendants are not accorded 
the protection of the indictment process, only the motion to dismiss 
stands between a defendant and a frivolous suit brought precisely in 
order to stifle the defendant's speech. Because civil plaintiffs need not 
be government officials there is no popular check to prevent abuse of 
their power to litigate. Since civil cases can involve controversial poeial 
issues and sometimes years to resolve, restrictive orders could have 
a very substantial and destructive impact on the quality of public 

c. Restrictons on the Defense vs. Restrictions on the Prosecu- 

Neither the Reardon nor Kaufman Reports distinguished the bur- 
den which must be met to justify restraints on persons associated with 
the defense from that which must be met to justify restraints on pub- 
lic officials. The Reardon Report explicitly rejected such a distinc- 
tion, concluding (p. 86) : 

[T]he Committee is firmly convinced that it is inconsistent with the profes- 
sional obligation of counsel for either side to resort to the media for public favor 
in a pending action. 


A good argument can be made for imposing the same restrictions 
on both sides. 53 After all, "trials are not like elections, to be won 
through the use of the meeting-hall, the radio, and the newspaper." 
Bridges v. California, 314 U.S. 252, 271 (1941). It may be argued that 
if the prosecution resorts to publicity, the proper response for the de- 
fense is not to reply in kind but to seek the imposition of judicial re- 
straints on the prosecution. Reardon Report, p. 86. Moreover, a defense 
team which knew it could attack the prosecution or the courts without 
fear of response might well be tempted to undertake a massive publicity 
campaign. Obviously, such campaigns could increase the difficulty of 
impaneling an impartial jury. They could also seriously damage public 
respect for our legal system and its officers. If the defendant were con- 
victed, the one-sided publicity might make it appear that an injustice 
had been done. If the defendant were acquitted, it might appear that 
the defense had won its case not in the courtroom but in the news- 
papers. In either case, the appearance of justice could be undermined. 

On the other hand, there are reasons to argue that restrictions on the 
defense constitute a less important safeguard of fair trial interests and 
a more serious threat to important free expression interests than do 
restrictions on the representatives of the state. 54 To begin with, state- 
ments by the police and prosecutors may well have a far greater 
prejudicial impact than statements by the defense. The public naturally 
assumes that the prosecutor has no vested interest in the situation and 
that those in authority are aware of most of the facts relevant to the 
case, including facts not made known to the public. Statements by the 
defense, on the other hand, carry with them no stamp of authority. 
After all, almost every defendant who doesn't plead guilty claims 
innocence. As the Seventh Circuit pointed out in Chicago Council of 
Lawyers v. Bauer, 522 F.2d 242, 250 (7th Cir. 1975), cert, denied, 9G S. 
Ct. 3201 (1976). 

Only slight reflection is needed to realize that the scales of justice in the eyes 
of the public are weighed extraordinarily heavy against an accused after his 
indictment. A bare denial and a possible reminder that a charged person is 

presumed innocent until proved guilty is often insufficient to balance the scales. 

There is reason to be concerned that restrictions on the defense pose a 
more serious threat to the interests served by freedom of expression 
than do restrictions on persons associated with the government's case. It 
is likely to be the defense which has the greater stake in augment- 
ing the effectiveness of the public trial guarantee by drawing public 
attention bo abuses in the judicial process. Indeed, unlike restrictions 
on the government, defense resl rid ions could work to encourage abuse 
of prosecutorial discretion. 

In addition, extrajudicial publicity may be essential to raising a 
defense fund sufficienl to assure effective representation by counsel. 
While it is somel unes argued thai t he guarantee of counsel to indigents 
makes the raising of a defense fund unnecessary," it blinks reality to 

me thai ability to pay high legal fees and other costs of Litigi 
is uncorrelated with the quality oi defense. 

We are Indebted to David Shapiro for his Incisive comment! aa we developed thli 

r discussion of this issue drawi heavily on Richard B. Hirst, "Silence Orders — 
I'olltlfiil Kxpresslon by Defendants and Their Lawyers, " »; Earv. Civil Rights- 
598 (1971). 
■ .. '•'/.. Chicago council of Lawvert \. Bauer. 622 F.2d 242, lir.i nth (Mr VM~>). 
oert. denied, 96 S. Ct 8201 (1070). 


Moreover, the defendant may have an interest in combatting the 
public stigma which results from indictment. The court's verdict of 
acquittal may fail to restore a tarnished reputation. A criminal de- 
fendant may in a sense be on trial in the marketplace of public opinion, 
as well as in the courtroom. 

Such considerations, suggesting that restrictions on the defense 
should bear a heavier burden of justification than restrictions on the 
prosecution, do not, however, come directly to grips with the problem 
posed by a defense team which takes advantage of one-sided restraints 
to declare open season on the prosecution and the courts. One way 
to ameliorate these problems might be to make restrictions on the 
prosecution contingent on defense behavior. As rules of evidence some- 
times provide that no one may introduce reputation evidence unless 
the issue is raised by the defense, so fair trial-free expression rules 
might provide that where restrictions on extrajudicial statements are 
appropriate the prosecution may respond only to issues raised by the 
defense. We can envision two serious difficulties with such an ap- 
proach. The first is that it might be difficult in practice to define the 
scope of the issue which has been raised by the defense and to which 
the prosecution is entitled to reply. 56 More fundamentally, the solu- 
tion might be said to leave the defense with the option to try the 
case in the newspaper if it so desires. In such a situation, the courts 
would be left to fall back upon the techniques traditionally used to 
maintain the impartiality of the jury. 

On the issue of restraints on the defense as compared with restraints 
on the prosecution, we have tried to suggest the competing interests 
which will bear on the Committee's making a determination in light 
of the weight it attaches to each of the values in conflict. A central 
issue, as we see it, is whether a heavier burden of justification prerequi- 
site to the imposition of restraints on the defense should be imposed 
than that which must be met to uphold restraints on the state or the 

d. Bench Trials versus Jury Trials 
Should restrictions on speech ever be permitted in cases which are 
tried to a judge rather than to a jury? The Reardon Report noted that 
it was primarily concerned with problems affecting jury trials (p. 22) 
and suggested that only in jury trials should the contempt power be 
available to punish extrajudicial statements not in violation of a valid 
order mandating the confidentiality of closed proceedings. Reardon 
Report, pp. 13-14, Recommendation 4.1 (Approved Draft). But 
neither the ABA nor the Judicial Conference suggested that other 
restrictions be available only in the context of a trial by jury. And 
the only Circuit to consider the question concluded that no distinction 
was constitutionally required. Chicago Council of Lawyers v. Bauer, 
522 F.2d 242, 247 (7th Cir. 1975), cert, denied, 96 S. Ct. 3201 (1976). 
At the time of arrest and investigation, of course, we will not know 
whether there will be a jury trial or not, It may, however, be appro- 
priate to draw a jury trial-bench trial distinction if there is no right 

66 See, e.g., the Medina Report's description of New York's unsatisfactory experience with 
the New York State Bar Association's 1957 Canon 20. Medina Report, p. 18. 


to a trial by jury under the relevant law, or if it is clear in the particu- 
lar case that a jury has been waived. 57 

Two Supreme Court decisions are pertinent to this problem. In 
Craig v. Harney, 331 U.S. 367, 376 (1947), discussed supra, p. 6, the 
Court said: 

[T]he law of contempt is not made for the protection of judges who may be 
sensitive to the winds of public opinion. Judges are supposed to be men of forti- 
tude, able to thrive in a hardy climate. 

More recently, in Cox v. Louisiana, 379 U.S. 559, 565 (1965), the 
Court upheld a statute prohibiting picketing in front of a courthouse, 
pointing out: 

It is, of course, true that most judges will be influenced only by what they 
see and hear in court. However, judges are human ; and the legislature has the 
right to recognize the danger that some . . . will be consciously or unconsciously 
influenced by demonstrations in or near their courtrooms. ... A State may also 
properly protect the judicial process from being misjudged in the minds of the 
public. Suppose demonstrators paraded and picketed for weeks with signs ask- 
ing that indictments be dismissed, and that a judge, completely uninfluenced by 
these demonstrations, dismissed the indictments. A State may protect against 
the possibility of a conclusion by the public under these circumstances that the 
judge's action was in part a product of intimidation and did not flow only from 
the fair and orderly working of the judicial process. 

It is important to note that the Cox case involved: (1) conduct, 
rather than speech ; (2) a "time, place, and manner" restriction, rather 
than a ban on particular speech content; and (3) a proceeding in a 
state court, rather than one in a federal court, where the life tenure 
of judges may better serve to insulate them from public opinion. 

Nevertheless, the Craig and Cox decisions do serve to spotlight the 
two sets of considerations which ought to determine what standard of 
necessity must be met prior to imposition of First Amendment re- 
strictions in bench trials. On the one hand, judges are human and, like 
anyone, may be influenced by extrajudicial statements or by public 
opinion. On the other, they are expected to be better able to disregard 
evidence or pressures which might prejudice a jury. Indeed, in any 
bench trial a great deal of improper evidence may come to the judge's 
attention since he or she must ultimately rule on its admissibility. 

It is undoubtedly true, as the Seventh Circuit held, that some poten- 
tial benefit is derived if prejudicial material "can bo kepi from ever 
coming to the attention of a judge. . . ." 58 But bench trial restrictions 
heightened dangers to First Amendment interests. A defendant 
may have elected to waive the right to a trial by jury because com- 
munity opinion was marshalled Ln favor of conviction. In such a situa- 
tion, he may have an interest in being able to speak out to change 
public sentiment. Moreover, the need for public scrutiny may be in- 
tensified where there is no jury to check the arbitrariness of a judge. 

The potential benefit which may be derived from restrictions on 
parties freedom of expression in bench trials must be measured against 

the damage 1 such restrictions may work' on First Amendment interests. 
Accordingly, if Congress legislates fair trial- free expression rules, it 
should ask whether federal courts should he prohihited from imposing 
any restrictions on extrajudicial speech in bench trials or, at the least, 

'-"■ We IN Indebted to Darlfl Shnplro for helping uh to roflne this migpestion. Professor 
Shapiro <n<i not expren i view ms to the validity "i" our conclusion! hi this gectlon. 

capo Council <>] Lawyert \. Bauer, 622 F.2d 242, 2.17 (7th Cir. 1975), oert. denied, 
• 8201 I L976). 


whether more compelling circumstances should be required than would 
be required in jury trials. 

e. Restrictions on Attorneys 

Broadest of all the restrictions imposed by the Kaufman and Kear- 
don Keports are those applicable to attorneys. Premised on the notion 
that it is a lawyer's duty not to release information reasonably likely 
to interfere with a fair trial, they apply to all cases and proscribe gen- 
eral categories of prejudicial statements, without regard to the actual 
threat of prejudice in a particular case. Both the ABA and the Judi- 
cial Conference concluded that since lawyers are "officers of the court" 
with a special responsibility to preserve the integrity of the judicial 
process, they may be subjected to broader restrictions than other trial 
participants or the press. 

There can be little doubt that it is inappropriate for any "officer of 
the court" intentionally to subvert the judicial system through efforts 
aimed at prejudicing its deliberations. Moreover, there may well be 
times when lawyers' efforts to generate publicity for themselves are in 
sharp conflict with the best interests of their client. Such efforts can 
no more be condoned than can any other conflict of interest. And, with 
the exception of the rare case where public officials stand for re-elec- 
tion before their trials on corruption charges can be completed, it is 
difficult to envision much justification for potentially prejudicial state- 
ments by a public prosecutor. 

Nevertheless, it is important to think not just in terms of the label. 
"officer of the court," but also in terms of all of the interests affected 
by restrictions on defense counsel or on counsel to civil litigants. 

' The Supreme Court long ago recognized that the term "officer of the 
court," can cover a variety of very different roles. In Cammer v. United 
States, 350 U.S. 399 (1956), the Court was called upon to decide 
whether lawyers could be summarily tried for contempt under the pro- 
vision of 18 U.S.C. § 401(2), which empowers a court to punish "mis- 
behavior of any of its officers in their official transactions.-' The statute 
in question had been enacted almost immediately after the House had 
impeached, and the Senate had come within one vote of convicting. 
Judge Peck, who had sent a lawyer to prison for criticizing his deci- 
sion in a case argued by the lawyer. The Court relied on the legislative 
history to hold unanimously that Congress had not intended that 
lawyers be considered court officers for purposes of that statute. 59 It ex- 
plained in dicta that lawyers are primarily independent of the court, 
despite their importance to the judicial system, 350 U.S. at 405 : 

It has been stated many times that lawyers are "officers of the court." One of 
the most frequently repeated statements to this effect appears in Ex parte Gar- 
land. 4 Wall. 333, 378. The Court pointed out there, however, that an attorney 
was not an "officer" within the ordinary meaning of that term. Certainly nothing 
that was said in . . . [that or] any other case decided by this Court places at- 
torneys in the same category as marshals, bailiffs, court clerks or judges. Unlike 
these officials a lawyer is engaged in a private profession, important though it be 
to our system of justice. In general he makes his own decisions, follows his own 
best judgment, collects his own fees and runs his own business. The word 
"officer" as it has always been applied to lawyers conveys quite a different mean- 
ing from the word "officer" as applied to people serving as officers within the 
conventional meaning of that term. 

68 Harlan. J., took no part In consideration or decision of this case. Roed J., concurred 
only in the result. 

Once it is recognized that categorizing attorneys as "court officers'' 
does not. without more, determine the propriety of subjecting them to 
judicial restraints, one may begin to think in practical terms about the 
impact of such restrictions on First Amendment interests. 

First, there are the interests of the client. The client's right to be 
represented by counsel does not disappear as he exits the courtroom 
door. It has already been noted that, depending upon the circum- 
stances, the client may have an interest in combatting the public stigma 
of a criminal indictment, spotlighting abuses of prosecutorial and judi- 
cial discretion, raising a defense fund, or discussing the political sig- 
nificance of the trial. The client may be inarticulate or unskilled in 
gaining media attention and may have to rely on an attorney to pro- 
tect those interests. As Congressman (later President) Buchanan ar- 
gued at the conclusion of the trial of Judge Peck, it is "the imperative 
duty of an attorney to protect the interests of his client out of court 
as well as in court." G0 Indeed, restrictions on attorneys might even 
deprive clients of the counsel of their choice, by forcing the lawyer to 
choose between representing the client in court and joining in public 
debate. While it is sometimes argued that clients could find or hire 
someone other than lawyers to represent their interests out of court, 
this might be an expensive proposition and would do nothing to mini- 
mize prejudicial publicity. 

Judicial restrictive orders aimed at lawyers also have implications 
for the First Amendment interests of the public and of the lawyers 
themselves. Indeed, the very factors which have made lawyers 
likely targets for gag orders may make their contribution to public 
discussion especially worthy of protection. Since they are peculiarly 
well informed regarding the processes of the judicial system, the juris- 
prudential notions underlying those processes, and the 1 legal and social 
issues raised by their client's case, they have a special ability to con- 
tribute constructively to public debate. 

Moreover, restrictions on attorneys may strike at people who, even 
before the litigation begins, have a keen personal interest in speaking- 
out on the issues involved. That interest may be a principal reason for 
taking the case. These restrictions thus have a greater First Amend- 
ment impact than those which might be placed on jurors, who are in- 
volved in a particular case only by chance and probably would not 
have been prompted to join in public debate if they had not been called 
for jury duty. 

It is in the light of these considerations that we must evaluate tic 
per se rule adopted by most federal district courts prohibiting broad 
gories of statement.-, by attorneys, regardless of whether or not any 
tin-cat to a fair trial actually exists in the case in which the statements 
are made. We do not doubt that there is some value iu a prophylactic 
rule which puts attorneys on notice as to the kin. Is of statements prone 
to create prejudice. Indeed, withoat such a rule, iliav Undoubtedly 

will be times when a judicial order will come too late to prevent prej- 
udicial statements. Nevertheless, the rule poses a problem of overkill. 
An evaluation of a per se restriction must begin with the realiza- 
tion thai only ;i relatively small percentage of criminal cases ever 

reach a jury. Many are dismissed, most are settled by guilty pleas, 
some are tried by judges without a jury, and only about eight percent 

•Arthur .7. Stnnslmry, Report of the Trial of James IT. Peck (Boston, 1833), p. 455. 


are tried by a jury. Rcardon Report, p. 22. Moreover, only a small per- 
centage of all jury trial cases generate enough publicity to pose any 
serious threat to the fairness of a trial. Ibid. Of course, we could never 
be sure in advance which cases will go to trial. But these figures tell us 
that in at least 92% of the cases where a per se proscription applies, it 
is altogether unnecessary. Moreover, in the vast majority of the re- 
maining cases, any statement made by an attorney would be likely to 
be buried deep in the middle of a newspaper, if it were carried at all. 

Whether the Constitution permits restraints on attorneys on the 
basis of anything short of a "clear and present danger," only the Su- 
preme Court can say with certainty. The language of Sheppard v. 
Maxwell, 384 U.S. 333 (1966), is unclear, and the decisions of the cir- 
cuit courts add conflict to confusion. Nevertheless, the special status 
of lawyers, when all its implications are considered, suggests a stand- 
ard of "clear and present danger" or its equivalent. 

This report, however, may be less concerned with divining the Con- 
stitution's requirements than with devising desirable standards for 
the federal courts (so long, of course, as those standards require at 
least what the Constitution requires). That, at least, is a legislative 
question appropriately decided by Congress. It would be appropri- 
ate for Congress to ask whether there is anything inherent in the status 
of attorneys which, without more, justifies a dimunition of First 
Amendment rights and whether comment by lawyers on their pend- 
ing cases should be recognized as potentially serving substantial pub- 
lic interests, as well as important interests of their clients and the law- 
yers themselves. Accordingly, thought should be given to a rule pro- 
viding that no restrictions on extrajudicial statements by attorneys 
should be permitted except upon a finding that such statements in 
fact present a clear and present danger to the fairness of a particular 
trial. Such a rule should make it clear that restraints on an attorney's 
expression should be permitted only when all other methods are in- 
adequate to prevent prejudice, that is, when extrajudicial statements 
will make a fair trial a practical impossibility. Moreover, it should dis- 
tinguish between opinions regarding matters of law, which 
should not be restricted under any circumstances, and comments re- 
garding questions of fact. 61 

Bearing in mind the dynamics of the situation in which restric- 
tive orders are likely to be applied. Congress may conclude that no 
statutory standard is likely to prevent ovcrzealous use of restrictive 
orders by the trial courts. In that event, Congress should weigh the 
threat to the First Amendment occasioned by exces-ive reliance on 
restrictive orders against the threat to the judicial process which 
would result from a total ban on restrictive orders. If it is felt that 
cases in which restrictive orders would be appropriate would be ex- 
tremely rare, Congress could consider prohibiting the federal courts 
from issuing restrictive orders against defense attorneys in criminal 
cases, and against any attorneys in civil cases. It should be noted, 
however, that prohibiting courts from ever imposing such restrictive 
orders in specific cases (as opposed to general orders) would leave no 
room even for the most extraordinary of circumstances. 

Bt Wp are indebted to David Shnpiro <"or suecrestincr this Inst distinction. See also Chirnao 
Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert, denied, 96 S. Ct. 3201 


/. Restrictions on Parties 

The parties to a legal dispute obviously have a particular stake in 
the fairness with which that dispute is resolved. They also have a 
special incentive to call to the attention of the public any abuses or 
unfairness in the process by which their guilt or innocence, their lia- 
bility or right of recovery, are determined. 

Moreover, parties do not have the lawyer's luxury of escaping gag 
orders by withdrawing from the case. A criminal defendant can 
"withdraw" only by plea bargaining; a civil litigant can withdraw 
only by settling or forfeiting a disputed claim. 

For these reasons, restrictions on parties have obvious implications 
for First Amendment interests. Accordingly Congress should ask 
whether the federal courts should be forbidden to impose restrictions 
on extrajudicial statements by parties except where there is a clear 
and present danger that such statements will make a fair trial a prac- 
tical impossibility. If one entertains the view (discussed supra) that 
i esl lictions on persons associated with the defense should bear a heav- 
ier burden of justification than other restrictive orders, it would be 
appropriate to consider whether to prohibit the federal courts from 
imposing, or to make it more difficult to impose, any restrictions on 
the speech of criminal defendants outside the courtroom. 

g. Restrictions on Witnesses 

Whilp defendants in federal cases would at least not be subject to 
restrictions on expression until they have been indicted by a grand 
jury, or failed in a motion to dismiss, witnesses have no such protec- 
tion. A broad order silencing witnesses would give the government or 
private individuals the power to gag anyone who might conceivably 
have input into the case. A ban such as that issued (though later 
vacated) in the "Gainesville Eight" case barring any contact between 
the press and any members of the Vietnam Veteran- Against the War. 
provides a striking example of the uses which may be made of such an 
order. 02 

Such considerations would suggest considering a legislative rule 
that the federal courts may impose restrictions on a potential wit- 
ness only if it finds extrajudicial statements by that particular witness 
pose a clear and present danger of making a fair trial a practical 
impossibility. 03 

3. Secrecy and Closure of Judicial Proceedings C4 

Congress might create a qualified statutory public right of access 
to judicial proceedings. Such a statute would not prevent resolution 
of the constitutional status of the public's right of access, if only 
because state cases could still reach the Supreme Court. But it would 
establish the principle that judicial proceedings must be open to 

public scrutiny unless measures other than closure are inadequate 
to assure a fail- trial or to prevent injury to the security of the 
nal ion. 68 

■ i nited Btatea v. Columbia Broadcmtting Si/xtcm, -in? i\ 2d 102 (6th Cir. i!»74) ; see 
I nited State* v. Columbia Broadoaeting System, 497 F. 2d i<»7 (5th Cir iu74). 

we Doted al the outset <>f this report, we have not examined the problem* which 
may be Involved in Investigations by grand juries. Accordingly, we should not be under- 
stood to advocate any new rule applicable to prnnd juries. 

•< Nothing contained herein is intended to apply to the special problems of -rand 
jury secrecy. 

"An exception should be made for situations In which a witness is required to undress. 


The legislation could also provide that a record shall be made of 
any proceedings closed to the public and that any information sealed 
by the court shall be made available immediately after the conclu- 
sion of the trail, 06 unless continued secrecy is required to protect the 
security of the nation. 

The Twentieth Century Fund Task Force argues cogently for a 
recognition of the public's interest in the jury selection process. 67 
Accordingly, the courts could be required to disclose immediately 
information regarding the identities of those rejected for jury 
service. We are not convinced, however, that the identities of those 
selected to sit as jurors need be disclosed prior to the conclusion of 
the trial. As one Task Force member commented in dissent from the 
group's recommendation, withholding of such information may be the 
only safe way to protect jurors from improper questions and contacts 
by members of the press, friends of the parties, or personal acquaint- 
ances. Moreover, such information once disclosed cannot be called back 
after an immediate threat arises. 68 From a First Amendment stand- 
point, this information will again be of current interest on the day the 
verdict is handed down. Congress might consider a rule requiring that 
the names and identities of jurors be disclosed as soon as the trial is 
over 69 unless the judge finds there is reason to believe that the jury 
may be threatened or harassed. 70 

Reflection on whether to create a statutory public right of access to 
judicial proceedings would be enhanced by considering the kinds of 
factual situations that might arise. To take an extreme case, suppose 
the defendant in a criminal trial moves before trial to suppress a con- 
fession and asks to have the public excluded. Assuming that a com- 
plete transcript is kept and released as soon as the trial is over or the 
matter is disposed of without trial, a good argument can be made for 
closure. Apart from the fair trial-free expression problem, one should 
mull how a statute, if one be adopted, might affect the traditional view 
that depositions are not open to the public (the transcripts, of course, 
may if filed become part of the public record) , that pretrial conferences 
at which settlement is discussed are held in chambers, that sidebar 
conferences and meetings in chambers are sometimes held in the course 
of trials, that certain aspects of custody proceedings (or particularly 
embarrassing aspects of other proceedings) are held in private at the 
request of the parties, etc. 71 

If. Reviewability of Restrictive Orders 

Persons who are directly restrained by silence orders or by orders 

losing judicial proceedings will probably be able to seek immediate 

review of those orders on appeal. Whether reporters can obtain review 

of an order proscribing extrajudicial statements by trial participants 

remains an open question. At best, they can do so only by travelling 

J8 The Reardon Report recommended that a rule to this effect be made applicable to 
nil pretrial hearings closed to prevent prejudicial publicity. Reardon Report, p. 7, Recom- 
mendation 3.1 (Approved Draft). 

07 Rights in Conflict, p. 12. 

68 Comment by Stephen Barnett, ibid. 

6o After the bribery trial of John Connally. Judge George Hart. Jr. refused ;i r,.,niest 
to disclose the names of jurors three weeks after the verdict was in. See Washington Post, 
May 2b, 1975. p. Al. 

i l°, We J, ea £^ , no conclusion as to the appropriate standard of proof for the judges 
finding. Cf. Rights in Conflict, p. 12. 

11 In the criminal trial context, cf. Rights in Conflict, p. 17: "Standards might well be 
set tor bench conferences, discussions in chambers, and the sealing of public records or 
other written material so that the public interest in public trials would not be disregarded " 


the arduous route of a petition for an extraordinary writ. Moreover, 
even once they start the appellate process, neither press nor parties 
have any assurance that a ruling will come in time to be of any value. 

A person who chooses to defy an invalid order before or while ap- 
pealing may find an appellate court agreeing that the order was patent- 
ly unconstitutional, but sustaining a conviction for contempt. One 
can only speculate as to whether other federal courts will join the 
Fifth Circuit in holding that judicial restrictive orders may not be 
collaterally attacked. We conclude, however, that application of that 
doctrine to orders prohibiting pure speech on the basis of content 
undermines the First Amendment. 

As the Supreme Court recognized in Bridges v. California, 314 U.S. 
252, 268 (1941), timeliness is the key to the effectiveness of public ex- 
pression. The damage inflicted by a prior restraint on speech or publi- 
cation is likely never to be undone. An appellate decision which over- 
turns a restrictive order only after the underlying case and the invalid 
<m <lcr have already been terminated is a pyrrhic victory indeed. A deci- 
sion which invalidates an order and then sends its violator to jail for 
his or her pains in protecting the First Amendment is disturbing. 

Accordingly : 

(1) Congress should consider enacting legislation aimed at pro- 
viding expedited review of judicial restrictive orders. It may also 
want to consider requiring circuit courts to determine, within a very 
short time after receiving an appeal of such an order, whether there 
are reasonable grounds to believe that the order might be invalid. If 
the circuit court concludes that reasonable grounds did exist, the trial 
court could be required to choose between staying the restrictive order 
and postponing the trial pending a final decision. 

(2) Congress should consider enacting legislation providing ex- 
plicitly that members of the press (and perhaps other members of the 
public) have standing to challenge orders restricting extrajudicial 
statements by trial participants. 

{?>) Congress should consider amending 18 TT.S.O. § 401(3) (197<0 
(which defines the power of the courts to punish violations of court 
orders) to provide explicitly that — at least where orders restricting 
speech on the basis of its content are concerned — the courts shall have 
no power to punish for contempt unless the order violated was valid. 71 

5. Procedural Due Process 

In light of its other First Amendment duo process decisions, noted 
SUpra ])p. 33-34, it seems likely that the Supreme Court would require 
that notice and an opportunity for hearing be accorded persons who 
:ire to be directly restrained by judicial restrictive orders. To date. 
however, such a procedure has rarely been followed by the trial court-. 
Moreover, the only federal appellate court decision dealing with the 
rights of the press when restrictions on trial participants are ordered 
held that the press was not entitled to procedural safeguards in that 

The Kaufman Report (and, presumably, the district court rules 
! upon it) does not provide f<w any procedural safeguard prece- 
dent to t]\^ Issuance <>f restrictive orders even for those directly 

7C ConffreM m:iv wint In COnttdOT limiting tho power of thr ponrN to punish violation 
of nny lnvUld court ordor. whether restricting speech or not. Whether such li-trlsln tl<»n 
would ho ndvlnnhlo or constitutional goei well beyond the scope of this study. 


restrained. The Reporters Committee for Freedom of the Press, the 
ABA Legal Advisory Committee on Fair Trial-Free Press, and the 
Twentieth Century Fund's Task Force have all recommended adoption 
of a number of procedural steps to be following before any standing 
guidelines or special orders restricting speech are adopted. 

The strictures of the First Amendment raise serious questions about 
rules which would restrict any categories of speech, especially by per- 
sons not associated with the government, in cases where the applicable 
standard of necessity had not been met. One should pause before 
accepting the conclusions of the ABA Legal Advisory Committee and 
the Twentieth Century Fund Task Force permitting enforcement — 
through use of the contempt power or use of professional discipline — ■ 
of such general rules applicable to all cases. 

Nevertheless, there is a need for voluntary guidelines, developed 
through informal procedures providing all interested parties ample 
opportunity for notice and hearing. Such guidelines should serve to 
warn trial participants that certain kinds of statements are especially 
prone to have a prejudicial impact on a jury, and should provide 
guidance to judges in their thinking about fair trial- free expression 
problems and solutions. 

Recommendations urging that opportunities for notice, hearing, and 
expedited appellate review be accorded all interested persons in con- 
nection with imposition of restrictive orders are among the most 
important to emerge from many years of debate over fair trial-free 
expression issues. In thinking about this subject, Congress should note 
the ABA Legal Advisory Committee's work in this area and the 
ABA House of Delegates action in summer 1976. 73 Moreover, in light 
of the Judicial Conference's past willingness to adopt the ABA's rec- 
ommendations on many fair trial-free expression issues, and in light 
of the procedural character of these proposals. Congress should con- 
sider whether to accord the Judicial Conference and the circuit Judi- 
cial Councils an opportunity to adopt their own due process rules. 

73 See Revised Draft: Recommended Court Procedures To Accommodate R lq hts of Fair 
Trial and Free Press (1975), approved by the ABA House of Delegates in August 1970. 
American Bar Ass'n, Summary of Action of the House of Delegates, 1976 Annual Meeting 
(Aug. 1976), p. 9. 


Comment on Nebraska Press Association v. Stuart 

When the report on fair trial and free expression was submitted to 
the Subcommittee on Constitutional Rights, Nebraska Press Associa- 
tion v. Stuart was still pending in the Supreme Court. Since the re- 
port's submission, the case has now been decided. 96 S. Ct. 2791 (1976). 
When the report and the Court's decision are compared, the principal 
effect of the decision is to reinforce the report's conclusions. 

The Nebraska decision focused upon the circumstances, if any, under 
which direct restraints upon the press might be permitted in the inter- 
est of assuring a fair trial. The case arose out of the sensational trial 
of a defendant charged with murdering all six members of a family in 
a small Nebraska town. Upon application of the county attorney and 
the defendant, the county court had issued a broad restrictive order, 
requiring adherence to the terms of the voluntary Nebraska Bar-Press 
Guidelines. After the defendant had been bound over for trial in the 
state district court, that court found a clear and present danger that 
publicity could impinge on the defendant's right to a fair trial and 
entered a modified version of the restrictive order, applicable only 
until a jury had been selected. 

Petitioners, the Nebraska Press Association and others, sought stays 
first from the Nebraska Supreme Court, then from Mr. Justice Black- 
mun, sitting as a Circuit Justice. When, on November 20. 1975 — nearly 
a month after the original order had been entered and twenty days 
after the press had applied for a stay — the Nebraska Supreme Court 
had not acted, Justice Blackmun concluded that the delav had exceeded 
"tolerable limits." 423 U.S. 1327. 1329 (1975). Accordingly, he entered 
an order staying the incorporation of the Bar-Press guidelines but 
leaving stand those portions of the district court's order that prohibited 
reporting the existence of any confession or any facts so "strongly 
implicative" of the accused that they would irreparably impair the 
ability of those exposed to them to reach an independent and impartial 
judgment as to guilt. 423 U.S. at 1333. On December 2, the Nebraska 
Supreme Court modified the district court's order to prohibit only 
reporting admissions made by the defendant to anyone other than the 
press and other facts "strongly implicative" of the accused. That i< 
how the order stood when the Supreme Court granted certiorari. 

By the time the Supreme Court had heard and decided the case on 
the merits, the restrictive order had expired and the trial bad been 
concluded. Nevertheless, the Court concluded that the case was not 
moot, since it was "capable of repetition, yet evading review." 96 S. Ct. 
at 2797. The justices were apparently unanimous on this point, and 
their conclusion indicates that mootness, in the form of trials having 
run their course, will not preclude judicial resolution of future fair 
trial-free expression issues. 



Chief Justice Burgers opinion in Nebraska Press Association was 
barely a majority opinion. Burger was joined by only four other jus- 
tices (White. Blackman, Powell, and Rehnquist). Six justices voiced 
their views in four concurring opinions. All the Court's members, how- 
ever, followed essentially the same line of reasoning described in this 
Eeport, laying stress on the presumption against prior restraint and 
on the special importance of reporting of judicial proceedings. 

Prior restraints on speech and publication. Burger said, "are the 
most serious and the least tolerable infringement on First Amendment 
rights." Prior restraints have u an immediate and irreversible sanction. 
If it can be said that a threat of criminal or civil sanctions after pub- 
lication 'chills' speech, prior restraint 'freezes' it at least for the time." 
And protection against prior restraint "should have particular force 
as applied to reporting of criminal proceedings. . . ." That an order 
does not prohibit publication but only delays it does not remove the 
dangers of prior restraint. 96 S. Ct. at 2802-03. 

The applicable standard of necessity, the Court concluded, was the 
version of the clear and present danger test formulated by Learned 
Hand and adopted by the Court in Dennis v. United States, 341 U.S. 
494 (1951) : whether "the gravity of the 'evil,' discounted by its im- 
probabilitv, justified such invasion of free speech as is necessary to 
avoid the danger." 96 S. Ct. at 2804. 

To determine whether the Nebraska judge's order could survive the 
demands of the clear and present danger test, reinforced by the odium 
of prior restraint, the Court considered three factors: 

( 1 ) the nature and extent of pretrial coverage ; 

(2) whether other measures would be likely to mitigate the ef- 
fects of unrestrained pretrial publicity; and 

(3) how effectively a restraining order would operate to pre- 
vent the threatened danger. 

As to the extent of a threat to a fair trial, the Court thought the 
trial judge had been justified in concluding that the case would en- 
gender intense and pervasive pretrial publicity and that publicity 
'•might impair the defendant's right to a fair trial." But the Court 
emphasized that the judge's conclusion as to the impact of such public- 
ity on prospective jurors must of necessity be speculative. 

As to measures short of an order restraining all publication which 
would have insured a fail* trial, the Court considered the traditional 
alternatives — change of trial venue, postponement of the trial, voir 
dire examination^ and sequestration of jurors. The Nebraska courts 
had made no finding that such alternative measures would not have 
protected the defendant's rights: indeed, the Court concluded that 
flic record was lacking in evidence to support such a finding. The 
( lourt'fl decision rather carefully distinguished bet ween the alternatives 
it had Suggested and those which had been proposed by other groups 
hut not yet approved by the Court, thus leaving for another day any 
decision as to the constitutionality of restraints on trial participants 
and closure of judicial proceedings. 06 S. Ct. at 2S0f> n>. 

Turning to the third factor, the probable efficacy of prior restraints 
on publication in safeguarding the fairness of the trial, the Court 

noted that the limits on the trial court's territorial jurisdiction and 

the need for in personam jurisdiction presented obstacles to an order 

purporting to apply to publication taking place outside its jurisdic- 


tion. The Court thought the effectiveness of restraints further limited 
by the difficulty of predicting what kind of information will in fact 
prejudice jurors and the difficulty of drafting orders that will effec- 
tively keep prejudicial information away from prospective jurors. 
Finally, the Court pointed out that the rumors which might be gen- 
erated in a news vacuum "might well be more damaging than reason- 
ably accurate news accounts/' These considerations led the Court to 
conclude that it was "far from clear" that prior restraints would have 
protected the defendant's rights. 96 S. Ct. at 2806. 

The Court concluded that the Nebraska order was unconstitutional 
in several respects. 

To begin with, to the extent that the order prohibited the reporting 
of evidence adduced at open preliminary hearing it "plainly violated 
settled principles'' that "there is nothing that proscribes the press 
from reporting events that transpire in the courtroom." 96 S. Ct. at 
2807, citing S/iepard v. Maxwell. 384 U.S. 333, 362-63 (1966). The 
court's use of the Sheppard language erases any doubts that may have 
remained regarding the absolute prohibition, applicable even in the 
face of threats to a fair trial, against restrictions on the reporting of 
open judicial proceedings — a point most commentators felt already 
rather well settled. See this Report, p. 17 ; Reardon Report, pp. 13-14, 
27, 153. 

Second, the Court held that a ban on reporting of information 
"strongly implicative" of the accused was "too vague and too broad to 
survive the scrutiny we have given to restraints on First Amendment 
rights." 96 S. Ct. at 2807. 

Finally, and most importantly, the Court held the order unconsti- 
tutional because it failed to meet the requirements of a clear and 
present danger test made more rigorous by the demands of prior 
restraint doctrine. The kev language is worth quoting, 96 S. Ct. at 

The record demonstrates . . . that there was indeed a risk that pretrial news 
accounts, true or false, would have some adverse impact on the attitudes of 
those who might be called as jurors. But on the record now before us it is not 
clear that further publicity, unchecked, would so distort the views of potential 
jurors that 12 could not be found who would, under proper instructions, fulfill 
their sworn duty to render a just verdict exclusively on the evidence presented 
in open court. We cannot say on this record that alternatives to a prior restraint 
on petitioners would not have sufficiently mitigated the adverse effects of pre- 
trial publicity so as to make prior restraint unnecessary. Nor can we conclude 
that the restraining order actually entered would serve its intended purpose. 
Reasonable minds can have few doubts about the gravity of the evil pretrial 
publicity can work, but the probability that it would so here was not demon- 
strated with the degree of certainty our cases on prior restraint require. 

This language is likely to be invoked as a now and more, precise 
version of the clear and present danger test to bo used in future fair 
trial-free expression cases. At least whore they impose direct restraints 
on the press, restrictive orders will be upheld only where it can be 
shown to the Supreme Court's satisfaction — the Court undertaking its 
own review of the record — that (1) there exists a clear threat of in- 
tensive and pervasive prejudicial publicity, (2) publicity not only 
could but in fact clearly would so distort the views of potential jurors 
that "12 could not be found" who would, under proper instructions, 
render a verdict based only on evidence presented at trial, (3) other 
alternatives could not prevent the need for prior restraints, and (4) 


the restrictive order under attack actually would have served to pre- 
serve the fairness of the trial. 

It is difficult to imagine a silence order that would survive so rigor- 
ous a standard, especially in light of the Court's observation that any 
conclusion as to the impact of publicity on prospective jurors is "of 
necessity speculative.-' dealing with factors "unknown and unknow- 
able." 96 S. Ct. at 2804. Chief Justice Burger was unwilling to lay down 
an absolute ban against restrictive orders on the press or to rule out 
the "possibility of showing the kind of threat to fair trial rights that 
would possess the requisite degree of certainty to justify restraints.-' 
96 S. Ct. at 2808. But the hurdle a silence order would have to face is 
likely to prove insurmountable. Indeed, the court understood it was 
setting a rigorous standard for future cases and that other restraining 
orders are as likely to fall as did the Nebraska order. 96 S. Ct. at l )v >< 17 : 

Of necessity our holding is confined to the record before us. But our con- 
clusion is not simply a result of assessing the adequacy of the showing made in 
this case: it results in part from the problems inherent in meeting the heavy 
burden of demonstrating, in advance of the trial, that without prior restraint 
a fair trial will be denied. The practical problems of managing and enforcing 
restrictive orders will always be present. In this sense, the record now before 
us is illustrative rather than exceptional. It is significant that when this Court 
has reversed a state conviction because of prejudicial publicity, it has carefully 
noted that some course of action short of prior restraint would have made a 
critical difference. 

Moreover, there may be five justices willing to hold that prior re- 
straints on the press are never permissible. Three justices — Brennan, 
Stewart, and Marshall — took that "absolutist" position in their con- 
curring opinion in Nebraska Press Association. "I would hold," said 
Brennan, "that resort to prior restraints on the freedom of the press 
is a constitutionally impermissible method for enforcing" the right 
to a fair trial. 96 S. Ct. at 2809. Justice White joined the majority 
opinion but wrote separately to voice his "grave doubt" whether si- 
lence orders aimed at the press "would ever be justifiable." Expressing 
reluctance to announce such a per se rule "in the first case in which 
the issue has been squarely presented." he nevertheless served not ice 
that he might well find himself in Justice Brennan's camp: 

If the recurring result, however, in case after case is to be similar to our 
judgment today, we should at some point announce a more general rule and avoid 
the interminable litigation that our failure to do so would necessarily entail 

90 S. Ct. at 2808. Similarly. Mr. Justice* Stevens, also concurring, 
wrote: "T do, however, subscribe to most of what Mr. Justice Brennan 
says and, if ever required to face the issue squarely, mav well accept 
his ultimate conclusion." 90 S. Ct. at 2830. 

What bearing docs the decision in Nebraska Press Association v. 
Stuart have Oil the conclusions and recommendations set out in the 
report to the Subcommittee on Constitutional Rigbipf The report su£- 
jrcsts that a version of the clear and present danger t(^i made more 
rigorous by tin* application of prior restraint doctrine would prob- 
ablv bar imposition of direct judicial restraints on the press. Accord- 
ingly, the report says "there is probably no Deed for legislation in this 
area." Supra. ?>. 07. That conclusion is obviously reinforced by the 
Nebraska, decision. 

The Court In Nebraska reserved judgment, howe^er t on the validity 
of orders restricting speech ]>v trial participants or closing judicial 
proceedings. 90 S. Ct. at '2S0T> n.8. The report to the Subcommittee dis- 



IBhE OMZMfl 31E2 

cusses the interests involved, including the public's First Amendment 
interests, and questions whether there is something about the special 
status of trial participants that justifies restricting their out-of-court 
speech upon a lesser showing than clear and present danger coupled 
with the assumed invalidity of prior restraints. Supra pp. 67 et seq. 
Justice Brennan, relying on Sheppard v. Maxwell, supra, assumes in 
his Nebraska concurrence, 98 S. Ct. at 2823 n.27, that restrictions by a 
trial judge on lawyers, parties, witnesses, or court officials would be 
permissible, but the Nebraska decision otherwise does little to resolve 
this question. Similarly Nebraska does not tell us whether the public, 
as opposed to the defendant, has a constitutional right to open judicial 

Future Supreme Court decisions may take up questions unanswered 
by Nebraska Press Association, such as restrictions on trial partici- 
pants or closure of judicial proceedings. But at the moment, with the 
decision in the Nebraska case at hand, it seems that the question 
whether to hold congressional hearings, and whether legislation might 
come out of those hearings, turns on about the same considerations as 
bore on the report at the time of its submission.